Vincent W. Fusco and Carol M. Fusco, Plaintiffs-appellants, v. the State of Connecticut, the Town of Trumbull, the Planningand Zoning Commission of the Town of Trumbull, the Zoningboard of Appeals of the Town of Trumbull, Donald Murray,individually and As Building Official for the Town Oftrumbull, Frank Fennell and Gloria Fennell and Albert A.d'amato, Defendants- Appellees, 815 F.2d 201 (2d Cir. 1987)

This is an appeal from a judgment of the United States District Court for the District of Connecticut granting defendants' oral motion to dismiss the complaint in a lawsuit brought pursuant to 42 U.S.C. § 1983 (1982) in which plaintiffs sought declaratory and injunctive relief to redress alleged violations of their rights under the fourteenth amendment. We affirm.

BACKGROUND

Since the court below dismissed the complaint at the conclusion of a hearing on plaintiffs' motion for a preliminary injunction, at which no evidence was introduced, we accept the allegations of the complaint as true for purposes of this appeal, Square D Co. v. Niagara Frontier Tariff Bureau, Inc., --- U.S. ----, 106 S. Ct. 1922, 1924 & n. 2, 90 L. Ed. 2d 413 (1986) (citing cases), and construe them favorably to plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).

The complaint alleges that at all relevant times, plaintiffs have been the owners and occupiers of a parcel of land improved with a home located at 470 Shelton Road in Trumbull, Connecticut. Frank and Gloria Fennell, immediately adjacent neighbors of the plaintiffs, applied to the Trumbull Planning and Zoning Commission ("PZC") for permission to divide their property into two building lots, one of which would be the site of the Fennells' existing home and the other of which, bordering on plaintiffs' property, would be available for sale.

The PZC published notices of its pending hearing on the Fennells' application in the Bridgeport Post on December 8 and 14, 1984. These notices were concededly in accordance with the requirements of Conn.Gen.Stat. Sec. 8-3 (1987).¹  Plaintiffs did not attend the hearing before the PZC, since they never saw the notices in the Bridgeport Post; they allege that had they known of the hearing, they would have appeared and opposed the Fennells' application.

The Fennells' property is located in an "AA" residential zone; Trumbull zoning regulations require lots in such areas to have a minimum road frontage of 150 feet. As the Fennells' proposed lot division would have created a building lot which failed to conform to the minimum road frontage requirement, the PZC granted the application conditioned on the approval of a variance from the zoning regulations by the Trumbull Zoning Board of Appeals ("ZBA").

Pursuant to Conn.Gen.Stat. Sec. 8-7 (1987),²  the ZBA published notices of its hearing on the Fennells' application in the Bridgeport Post on January 26 and February 1, 1985. The hearing was held on February 6, 1985. The application required a specification of the "exceptional difficulty" or "unusual hardship" necessitating the request for a variance, but the Fennells specified none. See Appendix at 16. Nor was an inquiry as to hardship made at the hearing before the ZBA. See Addendum to Appellants' Brief at 36-38. As with the earlier hearing before the PZC, the plaintiffs failed to appear at the February 6 hearing, having missed the notices published in the Bridgeport Post.

The Fuscos allege that the Trumbull ZBA customarily requires the posting of property for which a zoning variance is sought. They claim that the Fennells failed to post their property with a notice announcing the hearing before the ZBA.

Thereafter, the Fennells contracted to convey the newly created building lot to defendant Albert A. D'Amato. D'Amato planned to build a house on the lot in such a location as would, according to plaintiffs, destroy their privacy and diminish the value of their property. D'Amato applied to the ZBA for a variance on the sideyard requirement of local regulations. Plaintiffs learned of D'Amato's pending application, since his property had been posted. They appeared before the ZBA and opposed D'Amato's application, which was denied. Nevertheless, according to plaintiffs, D'Amato has stated his intention to build a smaller home, which will require no sideyard variance, very close to plaintiffs' swimming pool.

The Fuscos commenced the instant suit under 42 U.S.C. § 1983 (1982). Asserting a deprivation of property without due process of law, they sought, inter alia, a declaration that Conn.Gen.Stat. Secs. 8-3, -7 are unconstitutional as they do not require actual notice of hearings pending before zoning commissions or zoning boards of appeal to parties who are statutorily aggrieved within the meaning of Conn.Gen.Stat. Sec. 8-8(a) (1987);³  and a preliminary injunction restraining defendants (save the State of Connecticut) from effectuating the subdivision and variance obtained by the Fennells and from issuing a building permit allowing construction of a house on the lot D'Amato agreed to purchase.

At the hearing on plaintiffs' motion for injunctive relief pendente lite, defendants moved to dismiss the complaint. The district court heard from both sides, denied the injunction and granted defendants' motion to dismiss. This appeal followed.

DISCUSSION

In our view, the district court properly dismissed the complaint for failure to state a claim on which relief could be granted.⁴ 

Our analysis is guided by Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), wherein the Supreme Court stated that

in any Sec. 1983 action the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.

Parratt, 451 U.S. at 535, 101 S. Ct. at 1913. Where, as here, a party claims a deprivation of property without due process in violation of the fourteenth amendment, the second Parratt element embraces the following inquiry: (a) whether a property right has been identified; (b) whether governmental action with respect to that property right amounts to a deprivation; and (c) whether the deprivation, if one be found, was visited upon the plaintiff without due process of law. See id. at 536-37, 101 S. Ct. at 1913-14.

As to the first Parratt element, we note that it is far from clear how the Fennells and D'Amato may be charged with acting under color of state law so as to be amenable to suit under Sec. 1983. This issue was not aired in the district court, nor was it briefed on appeal. Nevertheless, we will assume each defendant was clothed with the requisite state authority, in light of the fact that plaintiffs have failed to allege facts--nor could they--sufficient to satisfy the second Parratt element.

At the oral argument on plaintiffs' motion for a preliminary injunction, the Fuscos were pressed to identify the property rights allegedly deprived by defendants. First, they asserted a property interest in Conn.Gen.Stat. Sec. 8-8(a), which grants statutorily and classically aggrieved persons a right to appeal zoning decisions to the Connecticut courts. They claimed this right was deprived without due process by operation of Conn.Gen.Stat. Secs. 8-3, -7, which did not require the relevant authorities to actually notify plaintiffs of the Fennells' pending subdivision application. In other words, as the Fuscos were unaware of the subdivision hearing, there was no way they could comply with the time constraints on taking appeals provided by Sec. 8-8(a); therefore, they were deprived of their right to appeal due to the failure of defendants to provide them with actual notice of the hearing.⁵  Second, the Fuscos argued that if defendants were not restrained, the value of plaintiffs' real estate would be diminished, and they would be injured in the enjoyment of their home and surrounding land.

We must reject plaintiffs' contentions. The opportunity granted abutting landowners and aggrieved persons to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an independent interest protected by the fourteenth amendment. BAM Historic District Association v. Koch, 723 F.2d 233, 236-37 (2d Cir. 1983); see also Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir. 1985).⁶  Plaintiffs' second claim--that the value of their real property will decline absent relief--fares no better. Assuming the truth of the claim, the Fuscos have failed to allege a deprivation cognizable under the fourteenth amendment. As we held in BAM Historic District, supra, " [g]overnmental action [allegedly causing a decline in property values] has never been held to 'deprive' a person of property within the meaning of the Fourteenth Amendment." Id. at 237.

Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983), on which plaintiffs place reliance, is distinguishable. There, a mortgagee's secured interest in real property was extinguished by the operation of an Indiana statute which required only constructive notice to mortgagees of impending tax foreclosure sales. Under those facts, particularly where the challenged statute worked a "complete nullification" of the mortgagee's unquestioned property interest upon his failure to redeem the affected real property within the statutory period, the Supreme Court held mortgagees entitled to "notice reasonably calculated to apprise [them] of ... pending tax sale [s]." Id. at 798, 103 S. Ct. at 2711. The Fuscos do not claim, however, nor could they, that "their property has been taken or their use of it so drastically regulated as to destroy its value...." BAM Historic District, 723 F.2d at 237 (citations omitted).

CONCLUSION

For the foregoing reasons, we conclude that plaintiffs have failed to state a claim upon which relief can be granted. Accordingly, the judgment of the district court is affirmed.

ORDER RECONSIDERING PETITION FOR REHEARING

We have reconsidered the petition for rehearing in light of the recent decision of the United States Supreme Court in First English Evangelical Lutheran Church v. County of Los Angeles, --- U.S. ----, 107 S. Ct. 2378, L. Ed. 2d (1987). We adhere to our previous decision.