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Varricchio v. Chalecki

United States District Court, D. Connecticut

September 28, 2016

FRANK A. VARRICCHIO, Plaintiff,
v.
RONALD L. CHALECKI, JR., Defendant.

          RULING ON MOTIONS

          Michael P. Shea, U.S.D.J.

         Plaintiff Frank Varricchio brings this suit, pro se, against Defendant Ronald Chalecki, the Zoning Enforcement Officer for the Town of Franklin, Connecticut. Plaintiff asserts claims arising out of Defendant's enforcement of zoning regulations with respect to two pieces of property used by Plaintiff and owned by a limited liability company that is not a party to this lawsuit. Defendant now moves for summary judgment on all counts. For the reasons set forth below, Defendant's motion is GRANTED.

         I. Factual Background

         A. Summary Judgment Record

         The following facts are undisputed unless otherwise indicated.[1] Plaintiff's claims arise from a series of Cease and Desist Orders sent to New England Rebuilders, LLC (“New England Rebuilders”) by Defendant regarding two properties on Pond Road in Franklin, Connecticut. The properties (collectively, the “property”) are currently owned by New England Rebuilders, which acquired title on April 4, 2005. (ECF No. 23-5.) The property consists of a “vacant piece of land” that Plaintiff used to warehouse vehicles and trucks and store other equipment since at least October 22, 2003. (ECF No. 24-1 at 35, 43-45, 58.) Plaintiff has not resided on the property. (Id. at 9-10, 80.)

         Before April 2005, the property was owned by DSD Cedar Hill, LLC, and Plaintiff leased the property from that company. (Id. at 34, 44.) On October 21, 2003, after being alerted to a possible zoning violation on the property, Defendant conducted a visual inspection of the property without entering the property. (ECF No. 23-4 at 2.) Defendant sent a letter to DSD Cedar Hill, LLC, on October 22, 2003, informing it that he had observed that the property was being used for “outside storage of used and abandoned vehicles and equipment, ” which was not in compliance with town zoning regulations and that the vehicles and equipment had to be removed immediately. (Id. at 9.) On November 25, 2003, Defendant sent a second notice to DSD Cedar Hill, LLC. (Id. at 11.) Defendant says that after the second notice, a representative of DSD Cedar Hill contacted him, and based on that conversation, Defendant took no further action. (Id. at 2.)

         On September 22, 2005, Defendant received a letter from Richard Matters, First Selectman of the Town of Franklin, who informed him that the property was not in compliance with zoning regulations, enclosed photos of the property, and requested that he “enforce the zoning regulations” at the property. (Id. at 13-14.) By this time, New England Rebuilders had purchased the property. (ECF No. 23-5.) At an October 18, 2005 meeting, the Planning and Zoning Commission voted to instruct Defendant to send the “new owner, ” i.e., New England Rebuilders, a letter about the zoning violations. (ECF No. 23-4 at 2.) Defendant sent the letter to New England Rebuilders on October 26, 2005. (Id. at 16.) Defendant sent a second notice on February 14, 2006. (Id. at 18.) On March 28, 2006, Mr. Matters again wrote to Defendant to inform him that someone was living on the property in a camper. (Id. at 20.)[2]

         After Defendant received no response to the letters, the Planning and Zoning Commission voted to authorize him to send New England Rebuilders another letter informing it that “legal action may be taken if the zoning violations were not resolved.” (Id. at 3.) Defendant sent a Cease and Desist Order to New England Rebuilders on September 12, 2006. (Id. at 22.) The Order informed New England Rebuilders that it was violating the following zoning ordinances:

Franklin Zoning Regulation sections 9.4: Prohibited Uses.
9.4.1: Any activity which produces unreasonable odors (caused by the uncontrolled discharge or exposure of human waste) considered objectionable to the residents of the area, and[3],
Franklin Zoning Regulation sections 9.19: Mobile Home During Construction of Dwelling.
Not providing a permanent dwelling or a temporary mobile home for occupancy during the construction or reconstruction of a permanent dwelling. The mobile home must be in compliance with Sections 9.19.1 through 9.19.7 of this Regulation.

(Id.) The Order stated that New England Rebuilders had two weeks to “remove the violation and conditions” noted in the Order. (Id.) Defendant sent a corrected Cease and Desist Order on January 2, 2007, stating that New England Rebuilders was violating the following zoning ordinances:

Franklin Zoning Regulations sections 9.3: Permitted Uses
9.3 No building or use shall be permitted to be located in the Town of Franklin unless it is a use, or is similar to a use, listed as permitted by right. In any case where a use is alleged to be similar to a specified use by the Franklin Zoning Regulations, its status shall be determined by the Commission by reference to the most clearly similar permitted use, or it shall be declared that the use is not similar.
The existing operation on the above mentioned property has not been approved by the Town of Franklin for the use.
Franklin Zoning Regulation sections 9.19: Mobile Home During Construction of Dwelling.
Not providing a permanent dwelling or a temporary mobile home for occupancy during the construction or reconstruction of a permanent dwelling. The mobile home must be in compliance with Sections 9.19.1 through 9.19. 7 of this Regulation.

(Id. at 24.) The Order also notified New England Rebuilders that it would face legal action if it did not comply within one week. (Id.) On January 8, 2007, New England Rebuilders sent Defendant a letter asking for clarification[4], and Defendant sent a letter responding on January 30, 2007. (Id. at 26.)

         The Town filed a lawsuit in Connecticut Superior Court on January 30, 2007, to enforce the Cease and Desist Order. (Id. at 28-32.) The Superior Court “entered a verdict” for New England Rebuilders.[5] (Id. at 4.) After discussions with the Town Attorney, Defendant reissued a Cease and Desist Order on May 20, 2008. (Id. at 4, 38.) The Order stated that New England Rebuilders could appeal to the Franklin Zoning Board of Appeals within 35 days. (Id. at 39.) On May 20, 2008, New England Rebuilders sent Defendant a letter stating that the Order was “irrelevant” and that it was complying with the law. (ECF No. 23-6.) On July 22, 2008, Defendant responded to the letter, stating that it was attaching an application to appeal the Order to the Franklin Zoning Board of Appeals. (Id. at 41.) The appeal application itself does not appear in the record. New England Rebuilders never appealed the decision. (Id. at 5, ECF No. 24-1 at 93.) Plaintiff asserted in his deposition that he received a letter from Defendant on March 1, 2011, informing him that the Cease and Desist Order from May 20, 2008 was still in effect.[6] (ECF No. 24-1 at 28, 119.)

         Plaintiff filed the present action on June 27, 2014. (ECF No. 1.) Defendant has now moved for summary judgment and served Plaintiff with the required Notice to Pro Se Litigants on November 17, 2015. (ECF No. 27.)

         B. Plaintiff's Claims

         Plaintiff brings 20 counts against Defendant. (Compl., ECF No. 1.) With the exception of his claim of a Fourth Amendment violation, his claims challenge the Cease and Desist Orders issued by Defendant, the Town of Franklin Zoning Officer. Plaintiff alleges that Defendant violated his rights by continually reissuing an identical Cease and Desist Order to New England Rebuilders. Defendant issued a Cease and Desist Order to New England Rebuilders on May 20, 2008, even after the Connecticut Superior Court had “entered a verdict” for New England Rebuilders on an earlier, identical Cease and Desist Order dated January 2, 2007. The two Cease and Desist Orders were addressed to New England Rebuilders and contained the same violations. Plaintiff conducted a business on the property, and alleges that the Cease and Desist Orders hindered his business. These allegations are the basis for the bulk of his claims, including Due Process Violation (Count 1), Violation of the Sixth Amendment Right to a Speedy Trial (Count 3), Violation of the Eighth Amendment Right to be free from excessive bail (Count 4), Violation of the Ninth Amendment (Count 5), Violation of the Tenth Amendment (Count 6), Violation of the Ex Post Facto Clause (Count 7), Violation of the Equal Protection Clause (Count 8), Violations of federal criminal statutes 18 U.S.C. §§ 242, 872, 1341, 1346, 1349 (Count 9 - 14), Violations of Civil Rights under 42 U.S.C. §§ 1981, 1982, and 1983 (Counts 15 - 17), Double Jeopardy under 42 U.S.C. § 2000h-1 (Count 18), Perjury under 18 U.S.C. § 1621 (Count 19), and Zoning Violations under “S. Statutes Chapter 124-125” (Count 20).

         Plaintiff's Fourth Amendment claim (Count 2) alleges that Defendant approached him on the property some time before January 2, 2007, to threaten him with a Cease and Desist Order if the property was not brought into compliance with the zoning regulations. He also claims that the visual inspections conducted by the Defendant violated his Fourth Amendment rights. I interpret most of Plaintiff's claims to invoke Section 1983.

         II. Legal Standard

         Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted). An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (citation omitted). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (internal quotation marks and citation omitted). On summary ...


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