Arrigoni Enterprises LLC v. Town of Durham, Durham Planning & Zoning Commission and Durham Zoning Board of Appeals: A land developer who sued after he was denied an application to build three industrial buildings in Durham was unable to convince a federal jury that the town violated the Equal Protection Clause of the U.S. Constitution when making its decision.

In 2005, developer Thomas Arrigoni applied for a permit from the town to proceed with plans to develop land he owned off Mountain Road. Though the rocky parcels were in an industrial zone, they were near a neighborhood with residential zoning.

Arrigoni sought to excavate, crush and remove the rock from the land and then build three light industrial buildings, totalling 35,000 square feet. The developer, who sought $2 million in damages, claimed the town has approved similar projects in the past.

The defense lawyer for Durham, Thomas Gerarde, of Howd & Ludorf in Hartford, said it wasn’t clear what types of businesses would mo ve into the buildings, but the facilities would have been the type that housed a snow-blower store or a lawnmower repair shop. Perhapsanother building could have been home to an engineering office.

Town officials didn’t find those types of businesses objectionable. Instead, they rejected the plans because of the initial rock-crushing process. Gerarde said the rock underneath the forest-like land was valuable. Called basalt, a volcanic rock, it is used in construction and statue-making.

Gerarde said Arrigoni planned to blast and crush the boulders and then sell the small stones for a substantial profit before putting up the buildings. This work, Gerarde explained, would have required blasting and crushing 75,000 cubic yards of bedrock.

Durham’s Planning & Zoning Commission denied Arrigoni’s request based on the impact on nearby landowners. Arrigoni acknowledged neighbors would have had to put up with two to three years of noise and dust from a rock-crushing machine, as well as dump trucks making thousands trips past the single-family homes. The application sought permission for between zero and 40 truck trips per day to remove the crushed rock.

"That’s a significant impact on a family," Gerarde said, referring to nearby residents.

After the town Planning & Zoning Commission and Zoning Board of Appeals denied applications from Arrigoni, he appealed to a Connecticut Superior Court, which in 2007 upheld the town’s decisions.

Arrigoni then petitioned the state Appellate Court, which refused to consider the case. Next, he filed a lawsuit in U.S. District Court claiming the town violated the Equal Protection Clause of the U.S. Constitution in denying his application because similar projects had been approved in the past by the town.

At trial, he cited two projects in particular. The most similar was an excavation project by Greenland Realty that was approved by the town in 2003. A 10,000-square-foot building was constructed on the opposite side of Mountain Road in Durham. The building is used for the storage of trucks and heavy equipment.

Gerarde, however, said there were differences between Arrigoni’s proposal and the Greenland Realty project. Specifically, he said Greenland was originally given persmission to excavate bedrock, but not to crush it or remove it from the building site.

However, part way through the project, Greenland returned to the zoning commission and said it had encountered more bedrock than anticipated and had to deal with it in some way to proceed with the building. So it asked the town for permission to crush rock on site for six weeks, on the condition that the crushed stones would be spread around the site and not be trucked off, past two single-family homes that stood nearby.

Greenland later asked to truck off 2,000 cubic yards of stone, but was turned down by the town.

"Arrigoni sought to capitalize on the Planning & Zoning Commission’s waiver of the rock-crushing prohibition in Greenland’s case by arguing that once we allowed Greenland to crush rock, we could not treat Arrigoni differently," Gerarde said. "We were able to convince the jury that Arrigoni was not similarly situated to Greenland because Arrigoni was asking to do a project three times the size of Greenland, and the Planning & Zoning Commission only agreed to allow Greenland’s rock crushing as an emergency measure to allow the half-built project to be completed."

Gerarde further noted the Arrigoni project would have gone on for several years, whereas the Greenland rock crushing work lasted for only six weeks.

Arrigoni’s lawyer, Richard D. Carella, of Updike, Kelly, Spellacy‘s Middletown office, claimed the failure by the town to issue the zoning permits resulted in $2 million in economic loss and rendered his client’s land undevelopable and valueless. The land remains undeveloped today.

The trial lasted four days last month in U.S. District Court in Hartford before visiting Judge James Graham, of the Northern District of Ohio. Witnesses included members of the Planning & Zoning Commission, an economic expert who explained the $2 million loss, and engineers who argued why and why not the Arrigoni proposal was similar to the Greenland Realty project.

Because Graham was accustomed to using 12-member juries in Ohio, he required that number in this trial, even though Connecticut courts normally use between six and nine jurors. The jury deliberated for about three hours before rendering a defense verdict.

Carella, the plaintiff’s lawyer, filed a post-trial motion claiming the town’s zoning regulations are unconstitutionally vague. If that motion is denied, Carella said he would likely appeal the jury’s verdict.

"We’re disappointed in the outcome and the client’s looking at appellate options," Carella said.

Though he presented his case to more jurors than normal, Gerarde said he was pleased he could persuade them that the town hadn’t wronged Arrigoni.

"The zoning commissioners are very happy and feel fully vindicated that they were not singling out the Arrigoni business," Gerarde said. "This clearly was a different type of project than was approved on the Greenland property and not an Equal Protection violation."•