Opinion
No. CV 06 5001511
April 23, 2008
MEMORANDUM OF DECISION RE WHETHER TOWN TERMINATING PLAINTIFF'S CLAIMED EXCLUSIVE USE OF PARKING AREA VIOLATES HER CIVIL RIGHTS
Plaintiff Joan Novarro has filed an eight-count Revised Complaint against the defendants, the Town of Clinton (Town) and its first selectman, William Fritz. The relevant facts follow.
The plaintiff is the owner of commercial real estate located at 25 East Main Street in Clinton. Immediately behind her property is a municipal parking lot owned by the Town. This lot was paved into a parking lot during the plaintiff's ownership of her lot, and originally, a curb was placed that created a small parking area of four parking spaces that could be accessed only by a driveway located on the plaintiff's property. The plaintiff and her neighbor used this small parking lot jointly for many years, an arrangement that ended when the plaintiff asserted exclusive rights to the area.
Upon receiving a complaint from the neighboring business, the Town conducted a survey and determined that the property in question belonged to the Town. Accordingly, the plaintiff was informed that she could not claim exclusive rights to its use. The plaintiff then asserted that due to the configuration of the lot, access to the lot could not be made without trespassing on her property. The Town responded by moving the subject curb to the edge of the property line. As a result of the new parking lot configuration, the plaintiff's customers must now cross over a curb to access the plaintiff's business. The plaintiff asserts that the defendants' action has given rise to four separate constitutional claims, including a denial of equal rights, a violation of procedural and substantive due process, and an unjust taking.
The eight counts state four separate causes of action against each defendant. Counts one and two sound in a denial of equal protection rights. Counts three and four assert claims for violations of procedural due process, while counts five and six assert claims for violations of substantive due process. Counts seven and eight sound in an unjust taking. The odd numbered claims are brought against the Town whilst the even numbered claims are asserted against Fritz in his individual capacity.
The defendants have filed a motion for summary judgment, memorandum of law, and accompanying documentary submissions including (1) the affidavit of William Fritz; (2) an excerpt from the plaintiff's deposition; (3) photographs of the parking lot and surrounding area; (4) a copy of the surveyor's map of the municipal parking lot; and (5) a copy of the correspondence between the parties prior to the reconfiguration of the parking lot. In addition, the defendants' counsel submitted an affidavit attesting to the true nature of the submitted documents. In response, the plaintiff has filed a memorandum in opposition, without an affidavit or any documentary attachments.
Standard for Summary Judgment
The defendants move for summary judgment on all eight counts of the plaintiff's revised complaint. "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). See Connecticut Practice Book Section 17-44 through 17-49.
Analysis
Counts one and two of the Revised Complaint assert a claim for a denial of the plaintiff's right to equal protection of the laws, as secured to her by the Fourteenth Amendment to the United States Constitution and enforced through U.S.C. §§ 1983 and 1988. The plaintiff alleges that she has used the small parking area adjacent to her lot for many years, sharing the use of the lot jointly with her neighbor. According to the plaintiff, this use continued until August 3, 2006, at which time the defendants arbitrarily and irrationally seized control of the parking lot. Sole use and control of the lot was then turned over to her neighbor. As a result of this act, the plaintiff claims she has been treated differently from her identically situated neighbor.
It is the defendants' contention that the undisputed facts demonstrate that the plaintiff has not been deprived of a constitutionally protected property or liberty interest because she is not entitled to exclusive use of a portion of the municipal parking lot. As a member of the general public, she is afforded the same right of access that is available to all people who wish to utilize the municipal parking lot. Accordingly, the defendants argue that they are entitled to judgment as a matter of law. In response, the plaintiff maintains that over thirty years ago the Town orally agreed to grant the plaintiff direct and unimpeded access to a small portion of the municipal lot. She contends that as a result of the recent decision of the Town to reconfigure the lot, she has intentionally been treated different from others similarly situated and that there is no rational basis for the difference in treatment.
"To establish a violation of the equal protection clause of the fourteenth amendment to the United States constitution, the plaintiff must prove that the state discriminated against him based on an impermissible, invidious classification. Washington v. Davis, 426 U.S. 229, 244-45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (only `purposeful discrimination' violates equal protection clause) . . . Therefore, the plaintiff must prove that the action `had a discriminatory effect and that it was motivated by a discriminatory purpose . . .' Wayte v. United States, 470 U.S. 598, 608-09, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) . . . Put another way, the plaintiff must establish that [she], `compared with others similarly situated, was selectively treated . . . and . . . that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.' . . . Schnabel v. Tyler, 230 Conn. 735, 762, 646 A.2d 152 (1994)." (Citations omitted.) DiMartino v. Richens, 263 Conn. 639, 673, 822 A.2d 205 (2003).
In support of its motion for summary judgment as to counts one and two, the defendants submit a copy of a land survey that depicts the Town as the owner of the adjacent parking lot, including the portion in question. The defendants also submit photographs that depict the current configuration of the lot. The photographs are offered to demonstrate that access to the plaintiff's property is only impeded by an asphalt curb that has been placed at the boundary of her property line. The defendants also submit the affidavit of the defendant, William Fritz, in which he attests that the parking lot, including the portion formerly used by the plaintiff, is open for use by the general public. He affirms that the use of the lot is still available for use by the plaintiff and her visitors. He further attests that the reconfiguration was the result of the plaintiff's demand that the public not trespass on her property in order to use the subject parking area owned by the Town. Finally, the defendants submitted an excerpt of the plaintiff's deposition, in which she testifies that there is nothing preventing her customers from using the public lot; however, she voices her concern that the new curbing makes the situation potentially inconvenient for her visitors.
The evidence submitted by the defendants in support of summary judgment is sufficient to meet their initial burden of establishing that a genuine issue of material fact is not in dispute as to allowing the plaintiff to use the property. The proffered evidence establishes that a municipal parking lot is located adjacent to the plaintiff's place of business. The Town reconfigured the lot to allow all members of the public to use the entire lot. The plaintiff, as a member of the general public, is entitled to use that parking lot. The evidence indicates that the plaintiff has not been treated any differently than a member of the general public. Accordingly, the burden then shifts to the plaintiff to demonstrate that a factual dispute remains.
The plaintiff has not proffered any evidence to establish that a factual dispute pertaining to her treatment by the Town remains for adjudication by the trier of fact at trial. "[T]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). Rather than submitting evidence in opposition, the plaintiff refers only to her own deposition testimony submitted by the defendants. It is the plaintiff's position that she was granted exclusive use of a portion of the Town's lot, and, therefore, the defendants' decision to reconfigure the lot to allow access to the general public amounts to discriminatory treatment.
In her deposition, the plaintiff testified about a purported deal orchestrated many years ago between the Town and herself. Pursuant to this deal, the plaintiff was awarded additional parking in the subject parking area as a result of alleged damage to her septic system when the lot was initially paved by the Town. Specifically, the plaintiff testified that the First Selectman at the time, Dan Vece, directly stated to her: "[W]e're going to give you additional parking." She further testified that "he gave people incentives . . . for us to cooperate with them, for us to allow them to pave over that additional piece of land we owned." The plaintiff's assertion that the Town selectman said he was going to give her additional parking does not, standing alone, establish the existence of a genuine issue of material fact regarding her purported property interest in a section of the Town's municipal parking lot. Clearly an oral promise, if made, is insufficient to create an interest in realty in the context of this case.
The court finds that the conclusory arguments made in the memorandum in opposition are not sufficient to sustain the plaintiff's burden on summary judgment. She has not established that she has been treated differently than another similarly situated because she has not provided any evidentiary basis to support her claim that she was entitled to exclusive possession.
Counts three and four of the Revised Complaint allege a violation of procedural due process against each defendant; whereas counts five and six assert claims for a violation of substantive due process. A common thread connecting these claims is the plaintiff's allegation that she has been deprived of property interest. "Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the defendant] was deprived of a protected interest, and, if so, what process was . . . due . . . Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001). If a claimant does not sufficiently establish the existence of a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude. Hunt v. Prior, 236 Conn. 421, 442, 673 A.2d 514 (1996)." Tuchman v. State, 89 Conn.App. 745, 755, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
The defendants maintain that they are entitled to summary judgment as to all four counts because a genuine issue of material fact is not in dispute pertaining to the Town's ownership of the property in question. Accordingly, it is the defendants' position that they are entitled to judgment as a matter of law because the plaintiff cannot prevail on her claims of substantive and procedural due process absent an actual property interest in the parking lot. In support of their argument, the defendants submit a survey conducted of the property that affirmatively establishes the Town's ownership of the municipal parking lot. They also submit the plaintiff's deposition in which she admits that she does not have any written instrument to support her purported property interest in the parking lot. This is sufficient to satisfy the defendants' burden of proof on summary judgment.
When the burden shifts to the plaintiff to establish that the ownership of the property is still at issue, she fails to submit any evidence to support her claim of a property interest. The only evidentiary support of her property interest appears in her own deposition in which she testifies to the existence of an oral agreement made between herself and Dan Vece, the Town selectman at the time of the agreement. According to her testimony, this agreement was made over thirty years ago and was the result of alleged damage to her septic system when the Town initially paved the municipal lot. She further testified that this agreement was offered as an incentive to allow the Town to continue the project without opposition. These factual representations, however, are insufficient to sustain her burden on summary judgment. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). The plaintiff has not submitted any admissible evidence to establish a proprietary interest in the subject property.
In counts seven and eight of the Revised Complaint, the plaintiff claims that her property was taken without just compensation in violation of the Constitution of Connecticut, Article First, § 11. The defendants argue that summary judgment is appropriate on both counts on the basis that the Town did not exercise eminent domain over the property as the undisputed facts demonstrate that the Town owns the property that the plaintiff claims was unjustly taken from her. Section 11 provides: "The property of no person shall be taken for public use, without just compensation therefor." Conn. Const., art. 1, § 11. In Trumbull v. Ehrsam, 148 Conn. 47, 55, 166 A.2d 844 (1961), the Supreme Court held that the term "taken," as stated in the Connecticut Constitution, Article first, § 11, "means exclusion of owner from his private use and possession and actual assumption of exclusive possession for public purposes by condemnor." See also Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992). Thus, in order for a taking to have occurred, the Town would have had to exclude the plaintiff from the use and possession of her property.
Conclusion
As previously discussed, the defendants have sufficiently established that the ownership of the parking lot lies with the Town, not the plaintiff. The plaintiff has not provided any evidentiary basis for her argument that the ownership of this property is still in dispute.
For the reasons set out in this Memorandum of Decision, the defendants' Motion for Summary Judgment is granted as to all counts.