Valley Housing LP v. City of Derby (802 F. Supp. 2d 359, 2011)

United States District Court for the District of Connecticut 2011-07-29

Labor The Public Health and Welfare

Citations

Full opinion text

RULING

TUCKER L. MELANQON, District Judge.

I. History of the Proceeding from the date trial commenced on July 26, 2010

This matter was tried to the Court on July 26-29, August 10-12, September 23, 2010 and April 12-15, 18-21, 25-28, May 2, 3, and 5, with testimony concluding on May 6, 2011. At the close of trial, the Court advised the attorneys for the parties that it would issue either an oral or written ruling as soon as practicably possible after receipt of the attorneys’ post-trial filings that they had previously been ordered to file by the Court. The parties originally estimated the case would take no more than 5 days to try. {Rec. Doc. 152).

Upon defendants filing a motion to recuse the undersigned on October 19, 2010 {Rec. Doc. 212), before ruling on the motion, the Court chose to review the transcripts of the trial to the time of the filing of defendants’ motion and continued the trial without date. The proceeding was recorded by an ECRO system and the final transcript of the initial portion of the trial was transcribed and filed via ECF on December 14, 2010 {Rec. Doc. 221). The Court issued its oral reasons denying the motion on January 7, 2011 {Rec. Docs. 223 and 221 )• Defendants’ motion {Rec. Doc. 212), plaintiffs’ opposition {Rec. Doc. 213) and the Court’s ruling speak for themselves.

Trial resumed on April 12, 2011. After inquiry, the Court was informed by Chief District Judge Alvin W. Thompson that it was not an unusual practice in the District, to avoid the delay occasioned in a lengthy trial and to have the transcripts of a proceeding available to the Court and to the attorneys, for the Court to order the parties to obtain the ECRO transcripts as the trial progressed, sharing the costs. The cost of the transcripts are then taxed as costs of the proceeding and the non-prevailing party ultimately cast with the costs of the proceeding. On April 12, 2011, the Court entered such an order verbally (Trial Tr., 12-14, April 12, 2011, Rec. Doc. 251) and on May 6, 2011 the Court set a posttrial briefing schedule (Rea Doc. 25S).

II. Duty of the trial Judge in a proceeding tried to the Court

In any bench trial, the trial judge, as the finder of fact, has to evaluate the credibility of the witnesses that testify, based on the witnesses’ demeanor, any previous inconsistent statements made by a witness prior to and during the witness’s trial testimony, the witness’s explanation for any such inconsistent statements as well as the documentary evidence in the record. The United States Supreme Court has stated that “[tjrial judges have the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438, 116 S.Ct. 2211, 2225, 135 L.Ed.2d 659 (1996) (citations omitted). The United States Court of Appeals for the Second Circuit has observed that “the full flavor of a hearing cannot be sensed from the sterile sheets of a transcript.” ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004) (quoting Soc’y of Prof'l Journalists v. U.S. Sec’y of Labor, 616 F.Supp. 569, 578 (D.Utah 1985)). That is certainly the trial judge’s view of the testimony given and the documents on which much of that testimony was based in this case. The record will reflect that the Court questioned each witness that testified extensively, and that all witnesses, with the exception of the parties or party representatives, were sequestered during the course of trial. The Court’s findings of fact that follow are in no small part based on the trial judge’s view of the credibility of the witnesses that testified, based on their trial testimony, as well as the documentary evidence and the explanation of, or reconciliation of, any previous inconsistent statements, written or oral, made by a witness.

Due to the size of the courtroom in which the trial was conducted, the trial judge was seated between three and four feet from each witness that testified as the witness testified.

III. Order of witnesses’ testimony and the Court’s view of witness credibility

The first witness to testify, on July 26, 2010, was Barbara Taylor, the Freedom of Information Act coordinator for the Connecticut Housing Finance Authority (CHFA). The Court found Taylor’s testimony credible. The second witness to testify, on July 26, 2010, was Trudy Higgins, vice president of services for Birmingham Group Health Services. The Court found Higgins’ testimony credible. The third witness to testify, on July 26, 2010, was Sheila Runlett, director of housing counseling programs for plaintiff Home, Inc. The Court found Runlett’s testimony credible. The fourth witness to testify, on July 26 and 27, 2010, was Dominick Thomas, plaintiff Home Inc.’s zoning attorney and member of the Board of Directors for the Birmingham Group. Thomas recognized that he “can be a very pushy person” when making his point (Thomas, Trial Tr. vol. 2, 105, July 27, 2010, Reo. Doc. 187). The Court found Thomas’s testimony credible. The fifth witness to testify, on July 27, 2010, was Richard Dunne, Derby’s Economic Development Director from 1995 to 2004. The Court found Dunne’s testimony credible. The sixth witness to testify, on July 28, 2010, was Linda Fusco, a Derby resident and member of the Board of Alderman in 2005. The Court found Fusco’s testimony credible. The seventh witness to testify, on July 28, 2010, was David Dodes, a defense witness who was taken out of turn, who was employed by the City of Derby to write its zoning regulations in 2000 and was a paid consultant for the City of Derby at the April 21, 2005 Zoning Board of Appeals (ZBA) meeting. The Court found Dodes’ testimony credible. The eighth witness td testify, on July 28 and 29, 2010, was Chris Peterson, director of real estate development for Home Inc. The Court found Peterson’s testimony credible.

The ninth witness to testify, on July 29, August 10, 11 and 12, September 23, 2010, and April 12, 2011, was Samuel Rizzitelli, who was chairman of the Zoning Board of Appeals, Alderman for Ward 1 of the City of Derby and Chairman of the Democratic Town Committee, who is also an attorney. The Court found Rizzitelli’s testimony riddled with inconsistencies, self-serving and not to be credible. The tenth witness to testify, on April 12, 13 and 14, 2011 was defendant David Kopjanski, Derby’s Zoning Enforcement Official and Building Official. The Court found Kopjanski’s testimony self-serving, inconsistent and not to be credible. The eleventh witness to testify, on April 14, 15, 18, 2011, was Joseph Migani, plaintiffs’ architect. The Court found Migani’s testimony credible. The twelfth witness to testify, on April 15, 2011, was Dr. Angelo Dirienzo, a defense witness taken out of turn, who was a member of the Zoning Board of Appeals during the period in question. The Court found Dr. Dirienzo’s testimony credible. The thirteenth witness to testify, on April 19, 2011, was Richard Burtula, a defense witness taken out of turn, who was defendant Derby’s corporation counsel during plaintiffs’ Certifícate of Zoning Compliance (CZC) application process. The Court found Burtula’s testimony generally credible.

The fourteenth witness to testify, on April 20, 21, 25, 26, 27 and 28, 2011 was Brett Hill, president of plaintiff HOME Inc., who is also an attorney. The Court found Hill’s testimony credible and forthright, even when it was not in plaintiffs’ favor, and found that Hill had an impressive mastery of the details of the plaintiffs’ operations, the CHFA application and plaintiffs’ damages. The fifteenth witness to testify, on May 2, 2011 was David Manley, a member of the Derby Zoning Board of Appeals. The Court found that Manley’s testimony was generally credible but that he did not have a clear recollection of the proceedings in question, six years after the fact. The sixteenth witness to testify, on May 2, 3, and 5 was Marc Garofalo, former mayor of Derby. The Court found Garofalo’s testimony to be riddled with inconsistencies, self-serving and not to be credible. The seventeenth witness to testify, on May 5, 2011, was Joseph Coppola, Derby’s corporation counsel at the time of trial. The Court found Coppola’s testimony credible.

Chris Peterson was recalled, on May 6, 2011, for the limited purpose of testifying about the additional time he had to spend on plaintiffs’ project occasioned by defendants’ failure to timely provided plaintiffs with the CZCs. The Court again found Peterson’s testimony credible. The eighteenth witness to testify, on May 6, 2011, was Richard Bartholomew, a member of the Zoning Board of Appeals during the period in question. The Court found Bartholomew generally credible, but that he did not have a clear recollection of the proceedings in question, six years after the fact. The nineteenth witness to testify, on May 6, 2011, was Carol Senfield, a member of the Derby Zoning Board of Appeals during the period in question. The Court found Senfield’s testimony credible. Brett Hill was recalled, on May 6, 2011, for the limited purpose of testifying in response to defendants’ motion to amend their complaint to add an affirmative defense, filed on May 2, 2011 (Rec. Doc. 2k3) and granted by the Court on May 6, 2011 (Rec. Doc. 253). The Court again found Hill’s testimony credible.

Sherri Pflugh, a former member of Derby’s Board of Aldermen, testified by deposition dated May 17, 2007 and filed into the record as Plaintiffs’ Exhibit 42. As the trial judge finds himself in the same position as would be an appellate court as it relates to the deposition testimony of Pflugh, i.e., “the full flavor of a [deposition] cannot be sensed from the sterile sheets of a transcript.” However, based on the entirety of the record before it, the Court has no reason to believe that Pflugh’s deposition testimony was anything but credible.

IV. Findings of Fact

In any trial, civil or criminal, there are two types of evidence the trier of fact may consider: direct evidence, such as testimony of an. eye witness, and indirect or circumstantial evidence, the proof of circumstances that tend to prove or disprove the existence or nonexistence of certain other facts. The law makes no distinction between direct and circumstantial evidence. In a civil case such as this one, the law simply requires that the trier of fact find the facts from a preponderance of all of the credible evidence.

The Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). In some instances a finding of fact may also be a mixed conclusion of law and in other instances a conclusion of law may include findings of fact.

a. Background

1. Plaintiffs’ complaint in this action was filed on August 24, 2006 in the United States District Court for the District of Connecticut. (Rec. Doc. 1).

2. The case was originally assigned to the Honorable Robert N. Chatigny, United States District Judge. The case was transferred to the undersigned, as visiting United States District Judge, on January 21, 2010. (Rec. Doc. 150).

3. Plaintiff Valley Housing Limited Partnership (Valley Housing) is a Connecticut limited partnership created to develop and manage supportive housing for low-income disabled people in the Naugatuck Valley of Connecticut. (Plaintiffs’ Exhibit 3).

4. Plaintiff Home Development Inc. is a non-profit organization, incorporated in the State of Connecticut, for the purpose of developing and maintaining affordable housing for low-income people. Home Development Inc. is a subsidiary of HOME Inc., which owns and controls it. (Plaintiffs’ Exhibit 3).

5. Plaintiff Housing Operations Management Enterprise, Inc. (HOME Inc.) is a nonprofit developer, incorporated in the State of Connecticut, whose mission is to develop and manage safe, decent and affordable housing for low-income people. At all times relevant to this action, HOME Inc. was the developer for Valley Housing Limited Partnership and Home Development Inc. HOME Inc. was incorporated in 1988 and Brett Hill has served as its executive director since its creation and as its president since around 1998. (Hill, Trial Tr., 37, April 20, 2011, Rec. Doc. 25b )■ In addition to the project that is the subject of this lawsuit, HOME Inc. has developed two other supportive housing projects in New Haven that were funded by CHFA: Cedar Hill and Whalley Terrace. (Hill, Trial Tr., 39, b%, April 20, 2011, Rec. Doc. 25b).

6. Defendant City of Derby is a Connecticut municipality organized and existing under the laws of the State of Connecticut. Defendant David Kopjanski was, at all times relevant to this action, the Zoning Enforcement Officer for Derby authorized to issue CZCs to permit construction in Derby. At all relevant times Kopjanski had four paid positions with the City of Derby: Building Inspector, Zoning Enforcement Officer, Blight Officer and Inland Wetlands Officer. His employment by Derby was his only paid employment. (Kopjanski, Trial Tr., 166-67, April 12, 2011, Rec. Doc. 251).

7. Plaintiffs Valley Housing and HOME Inc. acted in a joint venture to develop three multi-family properties in Derby, Connecticut, located at 175-177 and 225-227 Caroline St., and 16 Fourth St. and two multi-family buildings in Ansonia, Connecticut located at 24-30 State Street. Valley Housing purchased the Derby properties in February 2004. Valley Housing transferred all its assets and liabilities to Home Development, Inc. in July 2009 and Valley Housing was inactive as of the time of trial. (Hill, Trial Tr., 16-18, April 25, 2011, Rec. Doc. 26b).

8. Plaintiffs purchased the Derby properties for the purpose of providing “supportive housing” for clients of the Birmingham Group Health Services Inc. (Birmingham Group). HOME Inc. was to be the developer and the manager for Valley Housing, and Valley Housing contracted with the Birmingham Group to be the social services provider for the intended tenants of the Derby properties. The intended tenants of the Derby properties were primarily clients of the Birmingham Group. (Defendants’Exhibit 56).

9. Birmingham Group, which has its primary office in Ansonia, Connecticut, was established in 1979 as the “Valley Mental Health Center.” (Higgins, Trial Tr. vol. 2,102-10b, July 26, 2010, Rec. Doc. 21b )• Although it has been the leading mental health agency in the Naugatuck Valley for the last 25 years, Birmingham Group has evolved over those years from solely providing mental health services to also offering services to victims of domestic violence, to persons with HIV/AIDS, and to persons with substance abuse problems. (Higgins, Trial Tr. vol. 2, 102-10b, July 26, 2010, Rec. Doc. 21b )•

10. “Supportive housing” is housing which provides not only an affordable place for a tenant to live, but also provides social service support to enable people with mental and other disabilities to live successfully in the community. All proposed tenancies in the Derby properties would be subject to ordinary Connecticut landlord-tenant law and in all respects would be operated as multi-family housing. (Higgins, Trial Tr. vol. 2,125-128, 200-201, July 26, 2010, Rec. Doc. 21b; Hill, Trial Tr., b0-bl, April 20, 2011, Rec. Doc. 25b )•

11. The intended tenants included persons with mental disabilities, a history of substance abuse, and/or HIV/AIDS, capable of independent living and productive community membership with Birmingham Group-provided support services. All services by Birmingham Group would be provided off-site, or through sporadic home visits, thus not interfering with the multifamily character of the housing. (Higgins, Trial Tr. vol. 2,13b-136, July 26, 2010, Rec. Doc. 21b; Plaintiffs’ Exhibit b, page 10).

12. Plaintiffs applied for funding from the State of Connecticut for this supportive housing project, and obtained a commitment from the CHFA to fund this project under the PILOTS program. (Peterson, Trial Tr., 144-45, July 28, 2010, Rec. Doc. 189; Plaintiffs’ Exhibit 95). Final approval of plaintiffs’ CHFA application, however, was dependent on plaintiffs being able to show that any properties purchased for supportive housing complied with all applicable zoning requirements. (Peterson, Trial Tr., 128-131, July 28, 2010, Rec. Doc. 189; Hill, Trial Tr., 67, 71-73, April 20, 2011, Rec. Doc. 254; Migani, Trial Tr., 124, April 15, 2011, Rec. Doc. 246).

13. It took plaintiffs and Birmingham Group over two years to locate the Derby properties. During this two year period plaintiffs, with the assistance of architect Joseph Migani, conducted an exhaustive search of regional properties. They reviewed between 40 to 50 different properties before settling on the Derby properties and the two in Ansonia that met the selection criteria of the funder, CHFA. (Higgins, Trial Tr. vol. 2, 129-30, 137-138, July 26, 2010, Rec. Doc. 214; Migani Trial Tr. 200-05, April 14, 2011, Rec. Doc. 245; Plaintiffs’ Exhibit 60).

14. The Derby properties were affordable by the cost-limitation standards of CHFA, and they were close to a bus route and local amenities such as grocery stores so that low-income clients could access appointments at Birmingham Group and purchase food and personal items. (Higgins, Trial Tr. vol. 2, 129-30, 141-43, July 26, 2010, Rec. Doc. 214; Peterson, Trial Tr. vol. 1, July 29, 2010, 40-44, Rec. Doc. 188; Migani Trial Tr., 126-133 April 15, 2011, Rec. Doc. 246).

15. The Derby properties are located in the Central Development District zone which allows residential use. (Plaintiffs’ Exhibit 5A page 2; Dodes, Trial Tr., Ill, July 28, 2010, Rec. Doc. 189).

16. Plaintiffs were specifically looking for properties that would not require a zoning change or variance in order to avoid a NIMBY (“not in my backyard”) reaction and possible political opposition. (Hill, Trial Tr., 95-97, 102-02, April 20, 2011, Rec. Doc. 254, Trial Tr., 105, April 28, 2011, Rec. Doc. 286; Migani Trial Tr., 88-90, 95, April 15, 2011, Rec. Doc. 246, Trial Tr., 202-03, April 14, 2011, Rec. Doc. 245; Plaintiffs’ Exhibit 1; Defendants’ Exhibit 1, page 7).

17. Plaintiffs’ plan was to relocate the residents of the three Derby buildings and then renovate the interior of each building to a high standard, ending up with the same number of apartments (15), but reducing the number of bedrooms. Plaintiffs’ plan was to retain the existing building envelopes, not to increase the number of units within each building or the number of persons living within each building and not to change the residential use of the buildings. (Migani, Trial Tr., 105-07, April 15, 2011, Rec. Doc. 246). The extensive scope of plaintiffs’ renovation was required by CHFA standards as a predicate to the agency’s commitment to finance the purchase of the properties as affordable rental housing for persons with low incomes. (Migani, Trial Tr., 113-14, April 18, 2011, Rec. Doc. 255).

18. The buildings on the Derby properties, like most of the residential units in the CDD, are nonconforming structures under Derby’s zoning regulations. The Court notes that the parties originally agreed to this finding of fact, but that defendants withdrew their stipulation (Trial Tr., 31, Sept. 23, 2010, Rec. Doc. 221); however, the Court finds that the weight of evidence presented at trial leads the Court to conclude that the plaintiffs’ properties were, in fact, nonconforming structures under Derby’s zoning regulations. (Thomas, Trial Tr. vol. 2, 48, July 27, 2010, Rec. Doc. 187; Plaintiffs’ Exhibit 9; Valley Housing, LP v. Zoning Bd. of Appeals of City of Derby, 2007 WL 662729, at *7 (Conn.Super.Ct. February 02, 2007) (Plaintiffs’ Exhibit 38)).

19. Derby zoning regulation Section 195-87(F) provides: “A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, without the need of a variance, but must get a zoning certifícate of compliance from the Zoning Officer.” (Plaintiffs’ Exhibit 9, page 2). In accordance with CHFA’s funding requirements, plaintiffs were required to apply for and obtain CZCs prior to the issuance of a building permit authorizing any renovation of the Derby properties. (Peterson, Trial Tr., 128-131, July 28, 2010, Rec. Doc. 189).

20. Plaintiffs consulted with their architect, Migani, and expected to receive CZCs for the Derby properties as a matter of right because they intended to use the properties for residential use, as permitted in the CDD zone, and because of their legal entitlement, under both Derby zoning regulations, and state law, to renovate the buildings so long as the buildings were not enlarged. (Peterson, Trial Tr., 125-128, July 28, 2010, Rec. Doc. 189; Hill, Trial Tr., 97-100, April 20, 2011, Rec. Doc. 254; Thomas, Trial Tr. vol. 2, 52-53, July 27, 2010, Rec. Doc. 187; Migani, Trial Tr., 89-90, 95, April 15, 2011, Rec. Doc. 246).

b. Mayor Marc Garofalo’s Investigation of Plaintiffs’ Project

21. In early 2004, the-then Mayor of Derby, Marc Garofalo, became aware of the sale of the Derby properties to plaintiffs after receiving a call from a constituent who lived in the Caroline Street neighborhood. (Garofalo, Trial Tr., 139-40, May 2, 2011, Rec. Doc. 278).

22. Garofalo, a Democrat, had recently been elected to his fourth two-year term as mayor. He was initially elected in 1997 and left office in 2005 after his defeat by Anthony Staffieri, a Republican. (Garofalo, Trial Tr., 102, May 2, 2011, Rec. Doc. 278).

23. In an effort to determine who had purchased the properties and for what purpose, Garofalo spoke with the city assessor’s office and Derby’s Economic Development Director Richard Dunne, and, after learning that the new owner was “Home Inc. d/b/a Valley Housing Limited Partnership,” researched HOME Inc. on the Secretary of State’s website. (Garofalo, Trial Tr., 140-44, May 2, 2011, Rec. Doc. 278, Trial Tr., 65-68, May 3, 2011, Rec. Doc. 272; Dunne, Trial Tr. vol. 3, 12-28, July 27, 2010, Rec. Doc. 215).

24. Garofalo also called CHFA before April 23, 2004 to inquire about any pending CHFA loan applications by HOME Inc. and was told to file a Freedom of Information Act request, which he did on May 10, 2004. (Garofalo, Trial Tr., 144-47, May 2, 2011, Rec. Doc. 278; Taylor, Trial Tr. vol. 2, 75-76 July 26, 2010, Rec. Doc. 214 )■

25. On May 13, 2004, Garofalo went in person to CHFA’s offices in Rocky Hill, Connecticut to review plaintiffs’ application for CHFA funding for the development and renovation of the Derby properties as supportive housing. As a result of this review of plaintiffs’ documents, Garofalo was aware that the Derby properties were intended for residential use by persons with disabilities and he knew the specific disabilities of the prospective tenants. (Garofalo, Trial Tr., 145-59, May 2, 2011, Rec. Doc. 278; Taylor, Trial Tr. vol. 2, 76-82, July 26, 2010, Rec. Doc. 214; Plaintiffs’ Exhibit 4). The Court finds Garofalo’s testimony that he did not tell anyone about the information he learned from reviewing the CHFA files not only not to be credible, but incredible based on the entirety of the record of this proceeding, testimonial and documentary. (Garofalo, Trial Tr., U9, 151-52, 158-59, May 2, 2011, Rec. Doc. 278). As a result of his visit to CHFA, Garofalo knew that plaintiffs intended to apply for federal Low Income Housing Tax Credits as part of their PILOTS funding. (Garofalo, Trial Tr., 75, May 3, 2011, Rec. Doc. 272; Plaintiffs’ Exhibit 4, page 8). The Court also finds Garofalo’s testimony that he “didn’t plan to respond in any specific way” to plaintiffs’ application, through CHFA, for his approval of tax credits for plaintiffs’ project not to be credible, (Garofalo, Trial Tr., 74-80, May 3, 2011, Rec. Doc. 272), given his opposition to the Mutual Housing project and his success at stopping that project from going forward by blocking its tax credit funding (see Finding of Facts Paragraph 50). Richard Dunne, Derby’s Economic Development Director, testified that Garofalo told him that “he was going to stop this project like he did Mutual Housing.” (Dunne, Trial Tr. vol. 3, 24, 28, July 27, 2010, Rec. Doc. 215 (agreeing that Garofalo told Dunne to give him his file, not focus on plaintiffs’ project anymore and that Garofalo would take care of it)).

26.Garofalo’s position was that plaintiffs could not develop their properties as supportive housing without a process that allowed input from the City and the neighborhood and as part of a comprehensive scheme for rehabilitating the neighborhood; however, he acknowledged that such a process, once underway, could take 18 months or more and would not necessarily result in approval of plaintiffs’ project, since a similar project in another neighborhood of Derby did not get fully financed. (Garofalo, Trial Tr., 54-56, May 5, 2011, Rec. Doc. 279). It was Garofalo’s view that “Derby should have a say in where that kind of housing gets placed.” (Garofalo, Trial Tr., 126, May 3, 2011, Rec. Doc. 272).

c. Kopjanski’s denial of the CZC in May 2004

27. Kopjanski has been employed by Derby since 1979 (Kopjanski, Trial Tr., 177, April 12, 2011, Rec. Doc. 251), has served under eight different mayors and described himself as a “survivor.” (Kopjanski, Trial Tr., 186-87, April 12, 2011, Rec. Doc. 251, Trial Tr., 38, April 14, 2011, Rec. Doc. 245). At the time of the May 25, 2004 meeting with Migani, Kopjanski was at the end of a four-year appointment as both the Building Inspector and the Zoning Enforcement Officer for the Town of Derby. Reappointment to both offices was by the Mayor, but the Zoning Enforcement Officer position also required approval by Derby’s Board of Alderman. (Kopjanski, Trial Tr., 166-77, April 12, 2011, Rec. Doc. 251).

28. Kopjanski’s employment contract with the City expired on June 30, 2004. After it expired, Kopjanski testified that he was essentially an at will employee, serving at the pleasure of Garofalo, until Garofalo re-appointed him on October 14, 2005, shortly before the election that removed Garofalo from office. (Kopjanski Trial Tr., 168-77, April 12, 2011, Rec. Doc. 251; Dunne, Trial Tr. vol. 3, 63, July 27, 2010, Rec. Doc. 215; Plaintiffs’ Exhibit 40).

29. Dunne and Kopjanski testified that they shared an office and used to talk about Garofalo holding their respective jobs over their heads. (Kopjanski Trial Tr., 181, April 12, 2011, Rec. Doc. 251; Dunne, Trial Tr. vol. 3, 63-64, July 27, 2010, Rec. Doc. 215). Kopjanski testified that Garofalo had, in fact, pushed Dunne out, although not until Dunne had a replacement job lined up. (Kopjanski Trial Tr., 182-83, April 12, 2011, Rec. Doc. 251).

30. Kopjanski testified that he and Garofalo met every couple of weeks during the spring and summer of 2004 to discuss pending zoning applications, including plaintiffs’ project. (Kopjanski Trial Tr., 92, April 13, 2011, Rec. Doc. 247). Garofalo testified that they never talked about plaintiffs’ project, in direct contradiction to Kopjanski’s testimony. (Garofalo, Trial Tr., 161, May 2, 2011, Rec. Doc. 278). Garofalo later testified that he spoke to Kopjanksi about the project when he first learned of it, contradicting himself. (Garofalo, Trial Tr., 68-70, May 3, 2011, Rec. Doc. 272). Garofalo also stated at the January 24, 2005 public meeting regarding the Caroline Street neighborhood that Kopjanski was “well aware of the matter-well versed in the matter I might say as well.” (Plaintiffs’ Exhibit 23, page 9).

i. Kopjanski’s knowledge of plaintiffs’ proposed tenants

31. Prior to the May 25, 2004 meeting with Migani, Kopjanski admitted he had heard rumors from people in the Caroline Street neighborhood that the Derby properties were going to be used as “half-way houses” or “some kind of institutional use.” CKopjanski, Trial Tr., 90, 116-17, April 13, 2011, Rec. Doc. 247).

32. Also prior to the May 25, 2004 meeting, Dunne, with whom Kopjanski shared an office, asked Kopjanski whether Derby zoning regulations would allow a drug rehabilitation treatment facility at those addresses. (Dunne, Trial Tr. vol. 3, 7-15, July 27, 2010, Rec. Doc. 215). Dunne and Kopjanski testified that when Dunne had found out that HOME Inc. had bought the properties, he had done internet research on HOME Inc. and had suggested the properties might be used for a drug treatment center. (Kopjanski, Trial Tr., 58-62, April 14, 2011, Rec. Doc. 245; Dunne, Trial Tr. vol. 3, 8-10, July 27, 2010, Rec. Doc. 215).

33. The Court credits Migani’s testimony that in his May 25, 2004 meeting with Kopjanski, he told Kopjanski that HOME Inc. was his client, that they had contracted with the Birmingham Group, based on Migani’s explanation that it was his standard procedure that he followed with every project, to have full disclosure in a public process. (Migani, Trial Tr., 114-17, April 15, 2011, Rec. Doc. 246). Migani testified that he could not recall whether he used the word “disabled,” but that he believed that by mentioning Birmingham Group, Kopjanski had an understanding of who the residents of plaintiffs’ properties would be and that he told Kopjanski that the property would be used for residential purposes as supportive or transitional housing for clients of the Birmingham Group. (Migani, Trial Tr., 115-21, 120-24, April 15, 2011, Rec. Doc. 246; Trial Tr., 97-104, 109-13, April 18, 2011, Rec. Doc. 255). At trial, Kopjanski changed his testimony that Migani had not mentioned Valley Housing or HOME Inc. at the meeting to testifying that Migani had in fact mentioned Valley Housing or HOME Inc. and supportive housing after his recollection was refreshed with his deposition testimony. (Kopjanski Trial Tr., 189-197, April 12, 2011, Rec. Doc. 251).

34. Kopjanski testified that he knew there might be a social service aspect of the project, although he could not remember at trial or at his deposition whether Migani had mentioned Birmingham Group, but testified that if Migani had mentioned the Birmingham Group he would have recognized that helping people with mental disabilities is part of their duties and that it is a provider of mental health services. (Kopjanski, Trial Tr., 201-07, April 12, 2011, Rec. Doc. 251).

35. Although Kopjanski testified that the first meeting he had with Migani was on February 1, 2004 (Kopjanski, Trial Tr., 198-99, April 12, 2011, Rec. Doc. 251), which the Court notes would have been before Valley Housing closed on the purchase of the properties {Hill, Trial Tr., 90, April 26, 2011, Rec. Doc. 265), the Court credits Migani’s testimony that, while he may have contacted Kopjanski earlier to set up a meeting and inquire about what paperwork was required, it was his regular practice to record any significant contacts with Kopjanski and his Ansonia counterpart in a letter to his client, HOME Inc., and the first instance of any recorded meetings was May 25, 2004. The Court credits also Migani’s testimony that if he had known at an earlier date that Kopjanski was not going to issue the CZCs, he would have documented it to the client at that time. {Migani, Trial Tr., 98-100, 112-18, April 15, 2010, Rec. Doc. 216; Hill, Trial Tr., 109-10, April 28, 2011, Rec. Doc. 286). Migani’s May 28, 2004 letter, Plaintiffs’ Exhibit 2, states that the date of the meeting when Kopjanski informed Migani that he would not issue plaintiffs the CZCs was on May 25, 2004. Migani testified that he called ahead to schedule the meeting. {Migani, Trial Tr., 102-01, April 15, 2010, Rec. Doc. 216; Trial Tr., 75-79, April 18, 2011, Rec. Doc. 255). The change in date from the first and second answers to interrogatories that plaintiffs’ submitted during discovery does not affect the Court’s view of either Migani or Hill’s credibility. The Court finds credible Hill’s explanation that plaintiffs updated their answers to the interrogatories as they developed more specific information. {Hill, Trial Tr., 186-38, April 20, 2011, Rec. Doc. 251 )• Additionally, Kopjanski changed his testimony and on cross-examination admitted that he first denied plaintiffs’ request for a CZC in May 2004. {Kopjanski, Trial Tr., 113, 118-19, April 13, 2011, Rec. Doc. 217).

36. At their May 25 meeting, Migani told Kopjanski that the properties would be used for residential purposes, that plaintiffs would not be expanding the building envelope, and that the renovations to the interior of the building would actually decrease the bedroom count. {Migani, Trial Tr., 105-07, April 15, 2010, Rec. Doc. 216).

ii. Kopjanski’s stated reasons for denial of the CZCs was a pretext for discrimination

37. Kopjanski informed Migani at the May 25, 2004 meeting that he would not issue CZCs for the Derby properties and that, in order to obtain CZCs, the plaintiffs were required to apply to the ZBA for variances because the cost of the proposed renovations and improvements of the Derby properties was more than 50 percent of the replacement value of the properties under Section 195 — 80(c)(3) of the Derby Zoning Regulations. {Migani, Trial Tr., 105-12, April 15, 2011, Rec. Doc. 216; Plaintiffs’ Exhibit 2). However, at trial, Kopjanski admitted that Section 195-80(c)(3) does not require a variance, but instead authorizes a variance under certain circumstances. {Kopjanski Trial Tr., 223-21, April 12, 2011, Rec. Doc. 251, Trial Tr., 15-35, April 13, 2011, Rec. Doc. 217 (stating the 50 percent rule does not come from 195 — 80(c)(3) at all, but instead permits a variance and stating “[hindsight is 20/20. I couldn’t agree with you more.”)). Section 195-80(c) states:

In conformity with its general power to grant variances as provided in this article, and pursuant to the guiding principles stated in this article, the Zoning Board of Appeals is hereby specifically empowered ... (3) To grant a building permit for the reconstruction, structural alteration, restoration or repair of a structure used for a nonconforming use, to an extent exceeding in aggregate 50% of the replacement cost of such structure.

38. At trial, Kopjanski stated, for the first time, that Section 195 — 87(E)(1) was the section that required plaintiffs to seek a variance because demolition for the purposes of construction is damage for the purposes of that section because plaintiffs would need to destroy parts of the buildings in order to rebuild. (Plaintiffs’ Exhibit 9, page 2; Kopjanski, Trial Tr., 225-238, April 12, 2011, Rec. Doc. 251, Trial Tr., 15-33, 38-40, April 13, 2011, Rec. Doc. 247; Hill, Trial Tr., 105, April 28, 2011, Rec. Doc. 286). Section 195 — 87(E)(1) provides:

Any nonforming use, if damaged or destroyed from any cause to the extent as determined by the Building Official in consultation with the City Assessor, of over 50% of the current replacement cost of such structure above the foundation shall not be rebuilt or restored for the continuance of a nonconforming use therein....

The Court found Kopjanski’s interpretation of Section 195 — 87(E)(1) that renovation is damage or destruction for purposes of that section nonsensical. Kopjanski had interpreted Section 195-87(E)(1) to apply to neglect at his meeting with Thomas in February 2005 and at his deposition, contradicting his reasoning at trial. (Kopjanski, Trial Tr., 31-32, April 13, 2011, Rec. Doc. 247; Thomas, Trial Tr. vol. 2, 34-36, July 27, 2010, Rec. Doc. 187). Kopjanski admitted he had not applied his interpretation of Section 195 — 87(E)(1) to other properties in the Caroline Street neighborhood that had been renovated, which, assuming they were in fact less than 50 percent replacement cost, would have needed to be sent by Kopjanski to the Planning and Zoning Commission, which Kopjanski admitted he had not done. (Kopjanski, Trial Tr., 43-47, April 18, 2011, Rec. Doc. 247; Plaintiffs’ Exhibit 9, page 2; see Findings of Fact paragraph 85).

39. The 50 percent rule as Kopjanski interpreted it is not the rule articulated by the leading Connecticut case on the issue, State v. Hillman, 110 Conn. 92, 147 A. 294 (1929). The court in Hillman held that zoning regulations could prohibit reconstruction of a building that was devoted to a nonconforming use after it was destroyed more than 50 percent by a fire. 110 Conn. at 107, 147 A. 294. Kopjanski’s interpretation was that improvement can be prohibited when there has not been damage or destruction, because to make the improvements actually occasioned destruction, thus the 50 percent rule was triggered.

40. Kopjanski also admitted at trial that in applying the portion of Section 195-20(H) that allowed density higher than 12 units per acre, which he cited to show that plaintiffs’ nonconformity could be cured if they had sufficient parking, he did not read the definition of reuse in the Derby zoning regulations when he applied Section 195-20(H) to plaintiffs’ project. (Kopjanski Trial Tr., 50-56, April 13, 2011, Rec. Doc. 247 (stating “[t]o be honest with you, Your Honor, I didn’t read this definition when I made that decision”); Plaintiffs’ Exhibit 25, page 4; Defendants’ Exhibit 13, page 31).

41. Both 195-80(0(3) and 195-87(E) apply to properties that are non-conforming uses. Plaintiffs’ properties were being renovated for continued residential use (Findings of Fact paragraphs 8 and 10). David Dodes, the author of Derby’s 2000 zoning regulations, testified at trial that density and parking problems do not make a property a non-conforming use. (Dodes, Trial Tr., 112, July 28, 2010, Rec. Doc. 189).

42. The Court finds that Kopjanski’s proffered reasons for the denial of the CZCs were a pretext for discrimination on the basis of disability, in conformity with Garofalo’s wishes. Kopjanski’s explanation was contrary to both state and local zoning law and was based on an ever-changing “interpretation” of the Derby zoning regulations.

43. During a meeting in February 2005, Thomas attempted to persuade Burtula and Kopjanski that Kopjanski’s zoning interpretation and application of the 50 percent rule was contrary to state law protections of non-conformities and made no sense because it prevented plaintiffs from making major improvements to blighted properties. However, at all times during these negotiations, defendant Kopjanski continued to refuse to issue a CZC to the plaintiffs. (Thomas, Trial Tr. vol. 1, 41-42, July 26, 2010, Rec. Doc. 186; Buturla, Trial Tr., 87-44, April 19, 2011, Rec. Doc. 263).

44. Notwithstanding plaintiffs’ legal entitlement to CZCs, on May 25, 2004, Kopjanski denied plaintiffs’ request for CZCs for the Derby properties and continued to deny CZCs through February 2005, at which point plaintiffs formally appealed such denial to the Derby ZBA. (Thomas, Trial Tr. vol. 2, 72-78, July 27, 2010, Rec. Doc. 187; Hill, Trial Tr., 121-25, April 26, 2011, Rec. Doc. 265; Plaintiffs’ Exhibits 2, 11-13)

d. Opposition to plaintiffs’ project by city officials and in the Caroline Street neighborhood.

45. Between May 2004 and February 2005, plaintiffs negotiated with Garofalo for approval of the CZCs. (Thomas, Trial Tr. vol. 2, 75, July 27, 2010, Rec. Doc. 187; Higgins, Trial Tr. vol. 2, 144-57, 222, July 26, 2010).

46. In May or June of 2004, Garofalo met with Trudy Higgins, the Vice President for Operations for the Birmingham Group, and Marilyn Cormack, the Executive Director of the Birmingham Group. At that meeting, Garofalo expressed his strong opposition to the planned renovation of the Derby properties as supportive housing because Derby had long been a “dumping ground” for social service programs. He also questioned why the properties, described in the CHFA materials as “scattered site” were not scattered outside of Derby. (Higgins, Trial Tr. vol. 2, 144-57, 222, July 26, 2010, Rec. Doc. 214; Garofalo, Trial Tr., 163-64, May 2, 2011, Rec. Doc.278; Plaintiffs’Exhibit 57).

47. When Higgins and Cormack refused to withdraw their planned support for the Derby properties, Garofalo refused to talk to Cormack and withheld City funding for domestic violence services. (Higgins, Trial Tr. vol. 2, 156, July 26, 2010, Rec. Doc. 214; Plaintiffs’ Exhibit 57).

48. Garofalo’s view of Derby as a “dumping ground” for persons with social service needs was part of a widely-held town view that Derby already has done more than its fair share in the Naugatuck Valley for persons with social service needs, including services for persons with disabilities, and that additional programs to help persons with disabilities and other social service needs should not be located in Derby. (Thomas, Trial Tr. vol. 1, 29-32, July 26, 2010, Rec. Doc. 186; Higgins, Trial Tr. vol. 2,144-57, July 26, 2010, Rec. Doc. 214; Peterson, Trial Tr., 170, July 28, 2010, Rec. Doc. 189; Dunne, Trial Tr. vol. 3, 54-58, July 27, 2010, Rec. Doc. 215). Garofalo stated at his deposition that people do not always have positive views of those who need social services and “nobody wants this stuff in their backyard.” (Garofalo, Trial Tr., 116-17, May 3, 2011, Rec. Doc. 272).

49. Consistent with this “anti-dumping” policy, in 2001 the Board of Aldermen, including Rizzitelli and supported by Garofalo, voted to end its 15-year relationship with Spooner House, a homeless shelter provider operating in the Caroline Street neighborhood because, as Garofalo put it at trial, “Derby did at least its fair share, then and now.” (Garofalo, Trial Tr., Ill- 22, 131-33, May 3, 2011, Rec. Doc. 272; Dunne, Trial Tr. vol. 3, 60-63, July 27, 2010, Rec. Doc. 215; Rizzitelli Trial Tr., 13-21, August 10, 2010, Rec. Doc. 193; Plaintiffs’ Exhibit 87, pages k-7).

50. Also consistent with this “anti-dumping policy,” in 2001, Garofalo refused to support the proposal of a non-profit group, Mutual Housing of South Central Connecticut, to develop low-income housing units in the Caroline Street neighborhood. Garofalo’s opposition caused the non-profit group to withdraw its application for CHFA funding because funding, in the form of federal Low Income Housing Tax Credits, was not obtainable without Garofalo’s support. {Hill, Trial Tr., 101-02, April 20, 2011, Rec. Doc. 25k; Dunne, Trial Tr. vol. 3, 2k~28, 30-k5, July 27, 2010, Rec. Doc. 215; Garofalo, Trial Tr., 123-139, lkk-k5, May 2, 2011, Rec. Doc. 278; Plaintiffs’ Exhibit 82). In his letter refusing to support Mutual Housing’s project, Garofalo told CHFA that Derby was planning to commence a “visioning and planning process” for the Caroline Street neighborhood {Plaintiffs’ Exhibit 82, page 3) and testified that the public process should include the whole neighborhood; however, no plan was ever actually put in place. {Garofalo, Trial Tr., 60-62, May 3, 2011, Rec. Doc. 272).

51. Garofalo had the ability to secure approval of plaintiffs’ project or thwart the project. {Thomas, Trial Tr. vol. 2, 5k-61, 69, July 27, 2010 Rec. Doc. 18; Peterson, Trial Tr.,168-17k, July 28, 2010, Rec. Doc. 189; Hill, Trial Tr., 10k, April 20, 2011, Rec. Doc. 25k; Dunne, Trial Tr. vol. 3, 21, July 27, 2010, Rec. Doc. 215; Higgins, Trial Tr. vol. 2, lk7-55, July 26, 2010, Rec. Doc. 21k (“[H]is feeling was very clear that our project would not go forward, that it did not fit in with his vision for that area of Derby.”)).

52. At all times during the discussions, Garofalo presented himself as someone who had the authority and ability to allow the project to go forward if he chose to support it. At no time during his talks with Thomas did Garofalo direct Thomas not to talk to him about the project, or state to Thomas that the issuance of CZCs for the Derby properties was a decision to be made by Kopjanski or the ZBA. {Thomas, Trial Tr. vol. 2, 5k-61, 69, July 27, 2010, Rec. Doc. 187; Peterson, Trial Tr., 168-7k, July 28, 2010, Rec. Doc. 189; Hill, Trial Tr., 10k, April 20, 2011, Rec. Doc. 25k).

53. Prior to the ZBA appeal, residents of the Caroline Street neighborhood were also aware of the sale of the Derby properties to plaintiffs and knew the prospective residents of the Derby properties would include persons with substance abuse problems and persons with HIV/AIDS. {Peterson, Trial Tr. vol. 1, 2-kO, July 29, 2010, Rec. Doc. 188; Runlett, Trial Tr. vol. 2, 232-235, July 26, 2010, Rec. Doc. 21k; Pflugh Deposition Testimony, Plaintiffs’ Exhibit k%, deposition pages 58, 61, 6k; Plaintiffs’ Exhibits 23, 30, 81).

54. The Caroline Street neighbors were vocal to Sheri Pflugh, an Alderwoman who, along with Rizzitelli, represented the Ward in which plaintiffs’ Derby properties are located, about their opposition to plaintiffs’ proposed use of the properties. The neighbors’ opposition was based on their fears and concerns about the prospective occupants of the Derby properties. {Pflugh Deposition Testimony, Plaintiffs’ Exhibit k%, deposition page 77, 79-83, 86-89).

55. No Derby resident who spoke to Pflugh expressed support for plaintiffs’ proposed use of the Derby properties; everyone who spoke to her expressed opposition. {Pflugh Deposition Testimony, Plaintiffs’ Exhibit k2, deposition page 86). Constituents asked Pflugh to help them stop the project, including attending and testifying at the ZBA meeting, based on their fears and concerns about the prospective occupants of the properties. (.Pflugh Deposition Testimony, Plaintiffs’ Exhibit Jp2, deposition page 83-87).

56. On January 24, 2005, Garofalo addressed residents of the Caroline Street neighborhood, at which time he publicly expressed his concern about and opposition to the project. He said “there’s serious concern among the neighbors,” and “we’re going to deal with this thing aggressively” and “the people that [Thomas] represents are in question here and that matter will — we will stand united together on that, believe me.” Kopjanski, and members of the Board of Aldermen, including Rizzitelli, were present at the January 24, 2005 meeting. (Plaintiffs’ Exhibit 23). Peterson personally requested a meeting with Garofalo to discuss the project after hearing his negative comments at the January 24, 2005 special aldermanic meeting. (Peterson, Trial Tr., 168-69, July 28, 2010, Rec. Doc. 189).

e. The ZBA’s decision to uphold Kopjanski’s denial of the CZCs

57. On February 28, 2005, the plaintiffs formally appealed defendant Kopjanski’s denial of CZCs for the Derby properties to the ZBA. (Plaintiffs’ Exhibits 11-13). The ZBA discussed plaintiffs’ project at four meetings: March 30, April 21, May 19 and June 16, 2005. (Plaintiffs’ Exhibits 25, 27, 28, and 29). On April 19, 2005, while the appeal was pending, Thomas sent Kopjanski a draft of a zone text change as a method of allowing defendants to preserve their interpretation of the Derby zoning code, but making it clear that defendants’ interpretation did not apply to renovations of residential properties like plaintiffs’ proposed project. (Thomas, Trial Tr. vol. 2, 21-23, 26-29, July 27, 2010, Rec. Doc. 187; Plaintiffs’ Exhibit 21). In another effort to resolve the conflict and get his clients the CZCs they needed, Thomas applied for variances to Section 195 — 80(c)(3) on May 20, 2005, although his view was that his clients were not required to secure them under the Derby zoning regulations and were not entitled to the variances because they could not prove a hardship. (Thomas, Trial Tr. vol. 2, 21-22, 26-29, July 27, 2010, Rec. Doc. 187, Plaintiffs’ Exhibits 15-17).

58. Rizzitelli, in addition to being the chairman of the Democratic Town Committee between February 2004 and June 2005, was chairman of the ZBA. (Rizzitelli, Trial Tr., 90-97, August 10, 2010, Rec. Doc. 193). Rizzitelli was also one of the Aldermen representing the Ward in which the Derby properties are located. (Statement of Undisputed Facts, Rec. Doc. 129).

59. At the time of plaintiffs’ appeal, Garofalo, Alderwomen Pflugh and Fusco, as well as members of the Caroline Street neighborhood were aware of plaintiffs’ intended use of the premises for supportive housing, through numerous newspaper articles, personal meetings, public meetings, as well as through Garofalo’s review of plaintiffs’ CHFA application. (Fusco, Trial Tr., 10-29, 62-66, July 28, 2010, Rec. Doc. 216; Pflugh Deposition Testimony, Plaintiffs’ Exhibit 4.2, deposition pages 117-25, 181-82; Plaintiffs’ Exhibits 4, 23, 30-32, 81).

60. Upon learning of the filing of the ZBA appeal, Garofalo called Thomas. He was even angrier than he had been when the two men had met. He told Thomas once again that Derby was a dumping ground and he was going to oppose the project every step of the way. He asked Thomas why Birmingham Group was doing this. (Thomas, Trial Tr. vol. 2, 2-11, July 27, 2010, Rec. Doc. 187; Plaintiffs’ Exhibit 19). Although Garofalo initially testified that he found out about plaintiffs’ appeal only through the posted agenda for the ZBA’s first meeting (Garofalo, Trial Tr., 6-7, May 3, 2011, Rec. Doc. 272), he later admitted that he found out about plaintiffs’ appeal from Kopjanski within 3 days of filing the appeal, 27 days before the meeting. He admitted that when he spoke to Thomas, he was very, very angry. (Garofalo, Trial Tr., 99-108, May 3, 2011, Rec. Doc. 272; Plaintiffs’ Exhibit 19). The Court credits Thomas’ contemporaneous description of the content of the conversation in Plaintiffs’ Exhibit 19. Garofalo, after testifying in detail about what parts of Thomas’s email he agreed with or disputed, admitted that at his deposition taken February 28, 2007, more than 4 years before his trial testimony, he had testified that he could not remember the conversation at all. (Garofalo, Trial Tr., 32-3k, 65-73, May 5, 2011, Rec. Doc. 279).

61. At the time of plaintiffs’ appeal, all of the members of Derby’s Zoning Board of Appeals had been appointed or reappointed by Garofalo. Rizzitelli had been appointed to the ZBA in 1997 by Garofalo and he had been reappointed to a second 5 year term on the ZBA by Garofalo in late 2004. (Garofalo, Trial Tr., 25-26, May 3, 2011, Rec. Doc. 272; Manley, Trial Tr., 2k, 5k, May 2, 2011, Rec. Doc. 278 (as an alternate); Bartholomew, Trial Tr., 51-53, May 6, 2011, Rec. Doc. 280; Senfield, Trial Tr., 88-92, May 6, 2011, Rec. Doc. 280).

62. Rizzitelli and Garofalo spoke frequently about town matters and were political allies. (Rizzitelli, Trial Tr., 68-7k, August 10, 2010, Rec. Doc. 193; Dunne, Trial Tr. vol. 3, k8-k9, 76, July 27, 2010, Rec. Doc. 215; Fusco, Trial, Tr., 3k-36, July 28, 2010, Rec. Doc. 216). Rizzitelli testified first that he had one conversation with Garofalo where Garofalo expressed his opposition to plaintiffs’ project, but the conversation was “in passing” and they “never spent any deliberate amount of time on it at all.” (Rizzitelli, Trial Tr., 7k-82, August 10, 2010, Rec. Doc. 193). The following day Rizzitelli contradicted his testimony from the previous day and testified that he had “a few” conversations with Garofalo, in direct contradiction to his deposition testimony, when he remembered no conversations with Garofalo about the project. (Rizzitelli, Trial Tr., 97-102, August 11, 2010, Rec. Doc. 19k )■ Garofalo testified that he never spoke to Rizzitelli about the plaintiffs’ project. (Garofalo, Trial Tr., k9, May 5, 2011, Rec. Doc. 279).

63. Although most ZBA matters are given one public hearing, plaintiffs’ appeal was given three public hearings on March 30, 2005, April 21, 2005 and June 16, 2005. Moreover, the decision to allow the public more than one opportunity to speak on plaintiffs’ appeal was made before the commencement of the initial March 30 public hearing. (Plaintiffs’ Exhibit 25, page 15 (Rizzitelli stating, at the beginning of the March 30 meeting that “at the second meeting, we’re going to open up with the public again ... you will have time to obtain copies of the minutes of the meeting, understand what you’re talking about and re-present at that time”); Rizzitelli, Trial Tr., 111-12, August 11, 2010, Rec. Doc. 19k )■

64. At the March 20, 2005 meeting, Kopjanski presented a memo he had written to the ZBA, which was included in the minutes of the meeting, explaining his interpretation of the zoning regulations. In the memo, Kopjanski wrote that Section 195-20(H) allowed for higher densities if the property meets the parking requirements, but that plaintiffs’ properties did not meet the parking requirements. Kopjanski wrote that because plaintiffs’ properties failed to meet the requirements of Section 195-20(H) they were non-conforming uses. Further, he wrote that Section 195 — 80(c)(3) “requires a specific variance before a permit can be issued for the reconstruction, structural alteration, restoration or repair of a structure used for a non-conforming use, to an extent exceed in aggregate 50% of the replacement cost of such structure” and that based on the City Assessor’s office new replacement cost estimates, plaintiffs’ properties exceeded “the threshold limit of 50% of replace cost value established by Section 195 — 80(c)(3) of the Regulations.” (Plaintiffs’ Exhibit 25, at k-6).

65. Although it is uncommon for public officials to get involved in ZBA matters (Rizzitelli, Trial Tr., 113-15, August 11, 2010, Rec. Doc. 19k; Kopjanski, Trial Tr., 51-58, April lk, 2011, Rec. Doc. 2k5), three public officials, Garofalo, Alderwoman Sheri Pflugh, and City Treasurer Keith Liverty, all spoke in opposition to the issuance of CZCs for the Derby properties at the March 30 public hearing. Only Sheri Pflugh lived in the Caroline Street neighborhood. (Plaintiffs ’ Exhibit 25).

66. Although Garofalo rarely attended ZBA meetings and had never spoken in opposition to an application by a Derby property owner, he attended at least two of the four ZBA meetings on the plaintiffs’ properties and spoke on March 30, 2005, asking the ZBA to uphold the denial of CZCs for the plaintiffs’ properties. (Garofalo, Trial Tr., 99, May 3, 2011, Rec. Doc. 272; Rizzitelli, Trial Tr., 113-19, August 11, 2010, Rec. Doc. 19k; Plaintiffs’ Exhibits 25, 27-29). Although Garofalo asked the ZBA to “uphold the regulations,” he knew little about the Derby zoning regulations. (Garofalo, Trial Tr., 123, May 3, 2011, Rec. Doc. 272 (stating “[tjhere are no density requirements in the CDD” in contradiction to Kopjanski’s interpretation of the Derby zoning regulations, see Plaintiffs’ Exhibit 25, page k); Plaintiffs’ Exhibit 25; Thomas, Trial Tr. vol. 2, 96, July 27, 2010 Rec. Doc. 187; Rizzitelli, Trial Tr., 113-19, August 11, 2010, Rec. Doc. 19k).

67. Alderwoman Sheri Pflugh, who had been specifically asked by residents of the Caroline Street neighborhood to attend and speak against the issuance of CZCs for the properties, had no knowledge of the underlying zoning issue and merely wanted the zoning regulations used to stop the development of the Derby properties as supportive housing for persons with disabilities, specifically persons with a history of substance abuse and persons with HIV/ AIDS. (Sherri Pflugh Deposition Testimony, Plaintiffs’ Exhibit k2, deposition pages 86-89, 97-108; Plaintiffs’ Exhibit 25). In her statement before the ZBA, Alderwoman Pflugh asked the ZBA to consider who the prospective occupants of the Derby properties would be, asking the ZBA to consider “what’s going to happen to the investment in our community when we move this kind of situation in ... I don’t believe that these buildings are going to be used for residential use ... This is a business. They are going to put their clients in this building ... We don’t need that kind of thing in our neighborhood.” (Plaintiffs’ Exhibit 25, page lk).

68. The Derby residents who spoke at the March 30, 2005 public hearing similarly asked the ZBA to consider the prospective residents of the Derby properties including Ed Morales, whose testimony was specifically referenced by Rizzitelli in his written decision: “is [Thomas] going to put handicapped individuals in there? Is it mental people? ... [W]hat type of individual is he proposing to put in these units?” and Dan Waleski, who stated “I ... would like to know more about who this Valley Partnership is and all their ramifications and purposes in getting into real estate what its all about ... There is a question of safety in regard to the possible tenants that may be here.” (Plaintiffs’ Exhibit 25, pages lk-16).

69.The ZBA members were aware of plaintiffs’ intended use was for supportive housing for people with disabilities, based on the statements made at the meetings they attended. (Plaintiffs’ Exhibit 26, page 6 (Thomas stating “[i]t is referred to as supportive housing, the terminology christened by our State Representatives when they developed this program. Because in fact the houses are improved funds are allocated for improvement of the housing, funds are allocated to maintain the houses in an upgraded state, and individuals who given first preference to be in there are individuals who currently receiving some services from the Birmingham Group ... You could have individuals who are receiving some therapy, some case management.”); Dirienzo, Trial Tr., 18-19, 70-71, April 15, 2011, Rec. Doc. 246; Senfield, Trial Tr., 103-04, May 6, 2011, Rec. Doc. 280; Batholomew, Trial Tr., 82, May 6, 2011, Rec. Doc. 280 (admitting he did not recall hearing references to who plaintiffs’ tenants would be in meetings when he testified that he did not know plaintiffs’ tenants were disabled)). Rizzitelli contradicted himself at trial on his knowledge of plaintiffs’ intended tenants. In his trial testimony on July 29, 2010, he stated: “I had no idea” (Rizzitelli, Trial Tr., 47, July 29, 2010, Rec. Doc. 226); however, on August 10, 2010, he admitted that there was “a very good possibility” that he knew that the tenants would have mental illnesses or some other handicap. (Rizzitelli, Trial Tr., 59-50, August 10, 2010, Rec. Doc. 193). Rizzitelli also contradicted his deposition testimony that he had no knowledge of constituent concerns about the project (Rizzitelli, Trial Tr., 11, July 29, 2010, Rec. Doc. 226, Trial Tr., 24-25, August 10, 2010, Rec. Doc. 193), with his testimony at trial that he knew his constituents were concerned, particularly “over drug addicts and drug use, and drug users and crack addicts” (Rizzitelli, Trial Tr., 24, 27, August 10, 2010, Rec. Doc. 193).

70. At the April 21, 2005 ZBA meeting, the City called David Dodes, who drafted the 2000 revisions to the Derby zoning regulations, to speak as a paid consultant on the underlying rationale behind the adoption of Section 195 — 80(c)(3), but Kopjanski provided no information to Dodes about plaintiffs’ properties. In particular, Dodes testified that, although he met with Kopjanski before he spoke to the ZBA, he was not aware that the properties were being renovated for continued residential use at the time he addressed the ZBA and was surprised when he learned from plaintiffs’ counsel shortly before trial that Kopjanski had made the determination that plaintiffs’ properties were non-conforming uses. (Dodes, Trial Tr., 107-13, July 28, 2010, Rec. Doc. 189).

71. At the April 21, 2005 ZBA meeting, Rizzitelli refused Thomas’ request that the ZBA seek a legal opinion from the Derby corporation counsel, claiming that such a request would pose a “conflict of interest” although Thomas testified at trial that corporation counsel routinely advise municipalities on zoning matters and despite Thomas’s expressed willingness to waive any alleged conflict. (Thomas, Trial Tr. vol. 2, 106-28, 138-39, July 27, 2010, Rec. Doc. 187; Rizzitelli, Trial Tr., 110-19, August 10, 2010, Rec. Doc. 193, Trial Tr., 121-24, August 11, 2010, Rec. Doc. 194, Trial Tr., 90-99, September 23, 2010, Rec. Doc. 221; Plaintiffs’ Exhibit 27, pages 2-3, 10-11). Buturla, who was then the corporation counsel for Derby, testified that the only potential conflict he perceived was that if Kopjanski had requested counsel, his firm would have had to arrange special counsel for Kopjanski, while it represented the ZBA, but that had not occurred in this instance, so there was no conflict. (Buturla, Trial Tr., 46-47, 64-66, April 19, 2011, Rec. Doc. 263). The Court finds that Rizzitelli’s claim of a conflict was not in