Second Circuit Affirms Summary Judgment in favor of Municipal Officials and Building Board of Appeals

June 24, 2015

The United States Court of Appeals for the Second Circuit affirmed a decision of the United States District Court for the District of Connecticut granting a motion for summary judgment filed by RRD Partner Michael Ryan and Associate Jonathan Zellner on behalf of several municipal officials and members of the municipality’s building board of appeals.  The plaintiff had applied for a building permit with respect to property he owned in the municipality.  His application contained a provision authorizing officials from the town’s planning and zoning and building departments to go onto the property in question for purposes of inspection and enforcement.  While the application was pending, and after town officials had issued a stop work order, an official from the town’s building department went to the property to inspect the structure on the property with respect to its exposure to high winds from a nearby body of water and took photographs of the structure.  The plaintiff thereafter brought suit against several municipal officials and members of the town’s building board of appeals, claiming that they had violated his Fourth Amendment right to freedom from unreasonable searches. 

Attorneys Ryan and Zellner moved for summary judgment on behalf of the defendants, which the district court, Honorable Stefan R. Underhill, granted.  Judge Underhill determined that all but one of the defendants were entitled to summary judgment on the basis that they had no involvement in the decision to send the building department official to the property.  With respect to the other defendant, Judge Underhill held that he was not liable under the Fourth Amendment because the plaintiff had consented to and authorized the entry onto his property by virtue of signing the permit application, and because the defendant was entitled to qualified immunity.

On appeal, the Second Circuit affirmed Judge Underhill’s decision.  The Second Circuit held that the plaintiff’s permit application provided express consent for town officials to enter and inspect his property in connection with the building laws.  The Second Circuit also held that, to the extent the plaintiff partially revoked consent as to any search conducted by one of the named defendants, this instruction was complied with, because a different official had gone to the property to inspect it.  Finally, the Second Circuit held that the defendants were entitled to qualified immunity because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.