Preview
(X06) UWY-CV-21-5028294-S
NANCY BURTON SUPERIOR COURT
JUDICIAL DISTRICT
Vv OF WATERBURY
DAVID PHILIP MASON
ETAL. JULY 22, 2021
PLAINTIFF’ MEMORANDUM OF LAW IN OPPOSITION TO REDDING
DEFENDANTS’ MOTION TO DISMISS
Plaintiff Nancy Burton submits herewith her memorandum of law in opposition to the
motion to dismiss dated June 22, 2021 filed on behalf of the Town of Redding
defendants ("Redding Defendants”) pursuant to Practice Book §10-31.
Introduction
The Redding Defendants’ confused Motion to Dismiss asserts the entire complaint
should be dismissed on grounds it seeks to “relitigate” issues which plaintiff does not
seek to litigate in this matter and/or it seeks to dismiss Counts 6 (Illegal Search and
Seizure) and 7 (Violation of 42 U.S.C. §1483) of the Second Amended Complaint.
The motion is without merit.
Plaintiff adopts and incorporates herein her memoranda, affidavits and exhibits as
filed in this matter in opposition to the State Defendants and Defendants David Philip
Mason, Elinore Carmody and Dennis Gibbons.
Standard of Review
“When a trial court decides a jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must consider the allegations of the
complaint in their most favorable light . . . In this regard, a court must take the facts to
be those alleged in the complaint, including those facts necessarily implied from the
allegations, construing them in a manner most favorable to the pleader.
“In contrast if the complaint is supplemented by undisputed facts established by
affidavits submitted in support of the motion to dismiss . . . the trial court, in determining
the jurisdictional issue, may consider these supplementary undisputed facts and need
not conclusively presume the validity of the allegations of the complaint. . . . Rather,
those allegations are tempered by the light shed on them by the [supplementary
undisputed facts] . . .If affidavits and/or other evidence submitted in support of a
defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the
plaintiff fails to undermine this conclusion with counteraffidavits . . .or other evidence,
the trial court may dismiss the action without further proceedings . . . If, however, the
defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or
only evidence that fails to call those allegations into question . . .the plaintiff need not
supply counteraffidavits or other evidence to support the complaint, but may rest on the
jurisdictional allegations therein. . . .
“Finally, where a jurisdictional determination is dependent on the resolution of a
critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an
evidentiary hearing to establish jurisdictional facts . . Conboy v. State, 292 Conn. 642,
650-52 (2009), cited and quoted in Columbia Air Services, Inc. v. Department of
Transportation et al., 293 Conn. 342 (2009).
In this case, State Defendants have presented a jurisdictional challenge the
determination of which is dependent on the resolution of numerous critical factual
disputes by means of an evidentiary hearing to establish jurisdictional facts. Id.
Facts
Redding Defendants’ characterization of plaintiff's use of her property (“illegal
operation of a goat farm”) is inaccurate. As the State of Connecticut is a “right-to-farm
state’ and the Town of Redding Zoning Regulations permit farming operations in
‘ Connecticut's “right-to-farm” law is set forth in Conn. Gen. Stat. §19a-341 as follows:
Agriculture or farming operation not deemed a nuisance. Exceptions. (a)
Notwithstanding any general statute or municipal ordinance or regulation pertaining to
the nuisances to the contrary, no agricultural or farming operation, place, establishment
or facility, or any of its appurtenances, or the operation thereof, shall be deemed to
constitute a nuisance, either public or private, due to alleged objectionable (1) odor from
livestock, manure, fertilizer or feed, (2) noise from livestock or farm equipment used in
normal, generally acceptable farming procedures, (3) dust created during plowing or
cultivation operations, (4) use of chemicals, provided such chemicals and the method of
their application conform to practices approved by the Commissioner of Energy and
Environmental Protection or, where applicable, the Commissioner of Public Health or (5)
water pollution from livestock or crop production activities, except the pollution of public
or private drinking water supplies, provided such activities conform to acceptable
management practices for pollution control approved by the commissioner of
Environmental Protection; provided such activities conform to acceptable management
practices for pollution control approved by the Commissioner of Energy and
Environmental Protection; provided such agricultural or farming operation, place,
establishment or facility has been in operation for one year or more and has not been
substantially changed, and such operation follows generally accepted agricultural
practices. Inspection and approval of the agricultural or farming operation, place,
establishment or facility by the Commissioner of Agriculture or his designee shall be’
prima facie evidence that such operation follows generally accepted agricultural
practices.
residential zones and plaintiffs property is located in a “farming and residential” zone
and was historically a farm, plaintiffs asserted operation of a “goat farm’ is a legal and
permitted use in the Town of Redding.
The “Redding Defendants”? mischaracterize the Redding Zoning Regulations as
setting “the quantity limit” of goat ownership on plaintiff's property at nine (9).
This statement is incorrect. The Redding Zoning Regulations apply a formula based
on property acreage to set limits on the number of goats which may occupy the
property, regardless of ownership, as of right, that is, without the need to apply for a
zoning permit. The formula applies whether the property is well suited to domesticated
animal occupancy or completely unsuitable — that is, under a strict reading of the
regulations, an owner of a parcel of land which is entirely under water all the time is
nevertheless entitled, as of right, to keep however many animals on the property
conform to the formula. In this case, plaintiffs property consists of 3.6 acres and the
Zoning Commission has applied the formula to allow 9 adult goats as of right on
plaintiff's property.
A property owner desiring to keep more than the number of animals as allowed as-
of-right may apply to the Zoning Commission for a Land Management Plan.
The cases of Nancy Burton v. Redding Zoning Commission and Nancy Burton v.
Julia Pemberton were ordered transferred to the Complex Litigation Docket at
Waterbury as presided over by Get first name Hon. Bellis. Judger Bellis set a briefing
schedule in the zoning case and ordered a status conference to take place on March
10, 2021 at 10 AM.
By this date, plaintiff had temporarily relocated to an address outside Redding
where, just as she was preparing to participate in the remote conference before Judge
Bellis, DOAG agents and members of the Redding Police Department converged on
plaintiffs Redding property unannounced, broke apart her gate and proceeded to seize
her goats, invade her home, rifle through her things, take photographs and transport the
goats to the DOAG facility for large animals. The goats were uniformly healthy and well-
cared for by plaintiff and there was no cause for their removal.
Thereafter, Redding Town Counsel Steve Stafstrom, co-counsel herein for the Town
of Redding, unilaterally withdrew Pemberton without prior notice to plaintiff.
In the meantime, plaintiff had located a 501(c)(3) charitable animal sanctuary in
Harwinton, Connecticut, in addition to two other animal sanctuaries and numerous
2 The defendants Town of Redding, Redding First Selectwoman Julia Pemberton,
Redding Police Chief Mark O’Donnell, Redding Police Department, Redding Health
Department and Redding Building Department refer to themselves in their motion to
dismiss and memorandum of law in support of their motion to dismiss collectively as
“the Redding Defendants” and plaintiff will refer to them as such herein.
3
private individuals who were willing to adopt all of plaintiff's goats. As she had no
present plans to relocate her goats to Redding, and has put her Redding property on
the market for sale, plaintiff withdrew her Burton v. Zoning Commission land
management appeal.
DOAG filed a “verified petition’ seeking temporary care and custody of plaintiff's
goats dated March 18, 2021. A hearing on such petition was conducted by Hon. Susan
Quinn Cobb on March 30 and April 8, after which she entered an order of temporary
care and custody pursuant to Conn. Gen. Stat. 22-327a.
Plaintiff has filed numerous motions challenging such order, which are pending!
As the case has proceeded, plaintiff has become aware of the deplorable conditions
in which her goats are kept with the two-month delayed release of various DOAG
reports and records. It appears that her goats are deliberately and routinely left
unattended for 17 hours between 3:30 PM and 8:30 AM (71 per cent of the time) and
that they are overcrowded in stalls with no access to the outside, poorly fed and ina
stressful state.
To date, plaintiff is aware that one of her most prized goats died unattended while
pregnant with three female unborn kids. A male kid was spontaneously aborted in a
severely dehydrated state after the DOAG had failed to detect that his mother was
pregnant. A female kid lived only one day after birth under circumstances that strongly
suggest stressful conditions being suffered by the nanny goat.
Plaintiff has requested that this Court take judicial notice of State of Connecticut ex
rel. Jeremiah Dunn v. 65 Goats et al, HHD-CV-21-6139702-S.
On April 16, 2021, plaintiff filed her “Motion to Relinquish Ownership of Goats for
Immediate Release to Qualified Animal Rescue Facilities and Individuals As Identified
by Defendant;” the motion has yet to be acted upon. If granted, the goats would be
teleased to superior care and living conditions at no cost to the state.
Legal Argument
1. The doctrine of collateral estoppel is inapplicable
4
Redding Defendants argue that plaintiff is attempting to “relitigate” whether “her goat
farm was a legally permitted use” but is barred from doing so by the doctrine of,
collateral estoppel. There is no basis in the record that this is what plaintiff is attempting
to do nor that plaintiff's “goat farm” is not legally permissible.
Plaintiff's 3.6-acre property is now and will be in the future, unless the Redding
Zoning Regulations change, eligible for keeping nine (9) goats as of right on her
property as a legally permissible use, without the need to apply for a permit. This issue
has never been litigated nor did it need to be litigated and thus the Town Defendants
are wrong to state that issue “has already been conclusively established against the
plaintiff in the foregoing civil actions.”
Moreover, insofar as the Redding Town Counsel Steven Stafstrom — co-defense
counsel in this action - unilaterally withdrew the Redding Defendants’ Counterclaim in
Burton v. Pemberton, X06-CV-19-5027712-S, without notice to plaintiff, the allegations
and relief sought in the counterclaim were not established but rather were abandoned
and waived.
Finally, Redding Defendants state that the Town and its First Selectmen were
granted summary judgment in Pemberton. This statement is correct with regard to
plaintiffs claim of municipal estoppel only. What they omit to acknowledge is that the
Superior Court (Brazzel-Massaro, J.) denied the Town and Ms. Pemberton’s motion for
summary judgment on their counterclaim. (Nancy Burton v. Julia Pemberton et al.,
Memorandum of Law on Motion for Summary Judgment, Entry #108.02, 10/2/2020,
Plaintiff attaches hereto as Exhibit A the two-page Counterclaim as to which Judge
Brazzel-Massaro denied the Town’s motion for summary judgment on grounds the
material facts were in dispute.
2. Illegal Search & Seizure
Redding Defendants argue that plaintiff's search and seizure claim (Count 6 of the
Second Amended Complaint) should be dismissed because the issues pertinent to the
claim have already been fully and fairly litigated against plaintiff.
Once again, Redding Defendants present a grossly false and incomplete recitation of
indisputable facts.
Inter alia, they assert that Judge Cobb’s “Care and Custody Order’? ordered “that the
plaintiff relinquish her ownership rights.”
To the contrary, Judge Cobb did not order that plaintiff herein “relinquish her
ownership rights.” Plaintiff notes that within a week of Judge Cobb's order, she filed her
Motion to Relinquish Ownership of Goats for Immediate Release to Qualified Animal
Rescue Sanctuaries and Individuals as Identified by Defendant [plaintiff herein]. Dunn v.
$ State of Connecticut ex rel. Jeremiah Dunn v. 65 Goats et al. (“Dunn v. 65 Goats”)
HHD-CV-21-6139702-S, Entry #136.00, April 9, 2021.
5
65 Goats, Entry #142, April 16, 2021. In the intervening three months, the motion has
been claimed and reclaimed but not acted on:
Furthermore, Redding Defendants’ argument is based on the false notion that Judge
Cobb “conclusively determined that the information on which the warrant was obtained
— which plaintiff now challenges as fraudulent — was in fact reliable. The existence of
probable cause justifying the warrant was fully and fairly litigated, actually considered by
the court, and such finding was necessary to the determination that custody remains
with the State.”
In fact, the opposite is true. The hearing Judge Cobb conducted was the first,
preliminary step of a two-step hearing process and she clearly noted at the time on the
record that the standard of evidence she elected to apply was a lesser, looser standard
which would be replaced by a more rigorous standard when it came time to convene the
second hearing on whether “temporary care and custody” would become “permanent
care and custody.” Plaintiff herein vigorously disputes any assertions that her goats
were “neglected” or “cruelly treated” under her care and asserts no evidence was
presented from which such conclusions could be credibly and legally drawn. Contrary to
the Redding Defendants’ pronouncements, Judge Cobb's Order of Temporary Care and
Custody is far from a final order: it remains subject to plaintiff's yet-unheard motion for
reargument, motion for rehearing, motion to vacate and others. The governing statute
itself presumes a second hearing on a stricter standard by which the Court would have
authority to vacate the temporary order.
Moreover, Judge Cobb repeatedly refused to allow evidence or entertair|
consideration of whether the search and seizure warrant was appropriately and legally
issued despite plaintiffs repeated requests during the hearing that she do so. Plaintiff
was moved to file her written Motion to Suppress and Return of Seized Property (Entry
#134.00, April 8, 2021) and supplement thereto (Entry #160.00, April 26, 2021)(attached
as Exhibits N and O respectively to plaintiff's Memorandum of Law in Opposition to
State Defendants’ Motion to Dismiss filed in this case on July 22, 2021. Each was
ordered “Off’ sua sponte by the Court (Hons. David Sheridan and Jane Scholl).
Indeed, Judge Cobb even ruled out as inadmissible without explanation several
damning photographs plaintiff took depicting David Philip Mason, plaintiff's neighbor and
a defendant herein, as he cruelly chased and panicked plaintiff's goat in a wild
stampede straight into the road, an act for which plaintiff was arrested, not Mr. Mason:
Mr. Mason. (He and co-defendants Elinor Carmody and Dennis Gibbons were the
primary “undisclosed informants” for the DellaRocco search and seizure warrant
application. Their — and Mr. DellaRocco’s and Jeremiah Dunn’s - complete lack of
credibility are demonstrated in Plaintiff's Memorandum, Counteraffidavit and Exhibits
filed contemporaneously herewith in opposition to the State Defendants’ motion to
dismiss.
Thus, Judge Cobb — and others of the judiciary who participated on-and-off in these
proceedings — defiantly refused to consider plaintiff's challenge to the existence of
probable cause justifying the warrant, let alone fully and fairly litigating the issue,
although plaintiff agrees with Redding Defendants that such finding was “necessary to
[a lawful] determination that custody remain (temporarily) with the State.”
The Redding Defendants recognize that plaintiff ‘s complaint asserts that they acted
“under color of state law’ to violate plaintiff's Fourth Amendment rights from
unreasonable search and seizure when they, together with the State Defendants, acted
in concert to “deliberately and maliciously contribute to the submission of a false and
fraudulent application for a search and seizure warrant regarding plaintiff's property . . .
which was granted.”
Their effort to dismiss the search and seizure count relies entirely on false assertions
that “the validity of the search and seizure warrant, and the reliability of the information
contained therewithin, has already been litigated and determined [and] plaintiff should
be collaterally estopped from asserting her Fourth Amendment search and seizure
claim here.”
While Redding Defendants contend “[t]here is no evidence she can produce that
would mandate a different outcome,” once given a full and fair opportunity to do so,
plaintiff will produce evidence that will mandate a different outcome.
Redding Defendants further claim that they are entitled to qualified immunity for their
actions relating to plaintiff's claim that their actions caused a violation of her Fourth
Amendment rights.
This argument, too, is without merit under the present facts.
Qualified immunity may be available, for example, to a police officer conducting a
search “where clearly established law does not show that the search violated the Fourth
Amendment. . . . The inquiry turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was
taken.” Pearson v. Callahan, 555 U.S. 223, 243-44 (2009).
Here, the Redding Defendants participated in the seizure (theft) of plaintiff's goats
without probable cause and in the absence of evidence that plaintiff failed to provide a
single one of them with food, water, hay, shelter or veterinary care. Indeed, she lavished
24-hour round-the-clock care. Under these facts, Redding Defendants’ behavior was
wanton, willful, malicious and illegal. They did not identify a single goat with medical or
physical issues that plaintiff was not attending to in an appropriate manner. Case law on
the subject of animal cruelty mandates that a seizing officer identify an abused animal
on an individualized basis. See, e.g., State v. Hearl, 182 Conn. App. 237 (2018). The
State and Redding Defendants did not do this. They impermissibly responded to
screams of hysteria from three individuals ignorant of goat behavior intent on selling
their homes at inflated prices during the COVID-19 pandemic. They accepted at face
value the nonsense perpetuated by plaintiff's neighbors that plaintiff's goats — while
uniformly robust — were underfed or malnourished because they seemed to be
perpetually in pursuit of food. The fact is: a goat’s extra stomach — its rumen — requires
frequent ingestion of roughage to function properly. They said plaintiff's goats were
dehydrated — when they showed no physical signs of dehydration — because plaintiff
only poured four gallons of water into a bucket at a time — when the capacity of the
bucket was four gallons. They accused plaintiff of abusing her goats because the goats
were making a lot of noise one evening: it happened to be the twice-annual mating
period when the screams of a lusty goat are recognized by people with any knowledge
of goats as being a sign of good health. They said goats huddled closely together at
night because they lacked sufficient space when in fact even on the hottest day goats
will squeeze closely together because that is what goats do.
The Redding defendants took to surveilling plaintiff while she was attending a
medical appointment out of town; they surveilled her when she was filling jugs of pure
water from an artisanal spring for the goats and their good health at a location 60 miles’
away from Redding.
The Redding Defendants seized plaintiff's beautiful and healthy, playful goats on
false and malicious pretenses so they could take them to temporary confinement before
consigning them to auction and slaughter — under the guise of promoting animal
welfare.
The Redding Defendants have carried out a sadistic terror campaign outside the law
that shocks a civilized conscience. Their motion to dismiss should be denied and the
case allowed to proceed.
3. 42 U.S.C. §1983 Count
The Redding Defendants incorporate their “search and seizure” arguments for
dismissal in their discussion of plaintiff's 42 U.S.C. §1983 count. Correspondingly,
plaintiff incorporates her “search and seizure” response to her 42 U.S.C. §1983
argument.
The 42 U.S.C. §1983 Count additionally alleges deprivations of her due process and
First Amendment rights.
As Redding Defendants have not countered plaintiff's allegations with facts
supported by sworn affidavits, the Court must assume the truth of the allegations of the
complaint and construe them most favorably for the plaintiff.
Redding Defendants have pending their “hybrid” motion to strike/motion to dismiss
dated June 2, 2021. Should the Court determine that the allegations of the complaint
lack specificity, plaintiff should be permitted to replead.
Conclusion
For the above-stated reasons, the Redding Defendants’ motion to dismiss should be
denied.
THE PLAINTIFF
147 Cross Highway
Redding CT 06896
Tel. 203-938-3952
NancyBurtonCT@aol.com
CERTIFICATION
This is to certify that a copy of the foregoing Memorandum of Law in Opposition to
Redding Defendants’ Motion to Dismiss was delivered electronically to all counsel of
record on this date.
Fas
10
EXHIBIT A
COUNTERCLAIM
a
1 The Counterclaim Plaintiff is the Defendant Town of Redding, which acts for
zoning enforcement through its agent, the Redding Zoning Enforcement Officer.
2 The Counterclaim Defendant is the Plaintiff Nancy Burton (“Burton”).
3 The Redding Zoning Regulations allow a maximum of nine goats to be kept as of
right on Burton’s property at 147 Cross Highway, in the absence of a land management plan
approved by the Redding Zoning Commission.!
4 There is no approved land management plan for Burton’s property.
5 As admitted in the Complaint, Burton for at least seven years has kept well in
excess of nine goats on her property in violation of the Redding Zoning Regulations.
6 On October 17, 2017, the Redding Zoning Enforcement Officer issued and served
a cease and desist order to Burton, requiring compliance with the requirements of the Redding
Zoning Regulations as to the number of goats kept on her property. A copy of the cease and
desist order is attached to this Counterclaim as Exhibit A.
7 Burton appealed the cease and desist order to the Redding Zoning Board of;
Appeals, which denied the appeal and upheld the cease and desist order on December 19, 2017.
8 Burton appealed the decision of the Zoning Board of Appeals to the Superior
Court, which denied the appeal on June 5, 2019, Burton v. Redding Zoning Board of Appeals,
Docket No, DBD-CV-18-5012961 S.
9. To date, Burton has failed to remedy the zoning violation.
10, The zoning violation is willful because Burton has maintained an illegal number
of goats, and has allowed the goats to breed and increase the herd, for at least seven years and in
spite of the cease and desist order informing her of the violation.
1, The continued violation of the Redding Zoning Regulations by reason of Burton’s
neglect and/or willful refusal to remedy the violation is a matter of public concern for which the
Town of Redding has no adequate remedy at law.
WHEREFORE, the Counterclaim Plaintiff claims:
1 A permanent injunction restraining the Counterclaim Defendant from keeping
numerous goats on her property in excess of the number allowed by the Redding Zoning
Regulations.
2. A permanent injunction directing the Counterclaim Defendant to immediately
correct the violation referenced herein, by removal of as many goats as necessary so that the
property complies with the Redding Zoning Regulations; and to refrain from any future violation
of said Regulations;
3 Such other relief as in law or equity the Court may deem appropriate.
THE COUNTERCLAIM PLAINTIFF
TOWN OF REDDING, CT
By: /s/ Michael N. LaVelle
Michael N. LaVelle
Pullman & Comley, LLC
850 Main Street, P.O. Box 7006
Bridgeport, CT 06601-7006
Juris No. 47892
Telephone 203 330 2000
Facsimile 203 576 8888
mlavelle@pullcom.com
Its Attorneys
Preview
(X06) UWY-CV-21-5028294-S NANCY BURTON SUPERIOR COURT JUDICIAL DISTRICT Vv OF WATERBURY DAVID PHILIP MASON ETAL. JULY 22, 2021 PLAINTIFF’ MEMORANDUM OF LAW IN OPPOSITION TO REDDING DEFENDANTS’ MOTION TO DISMISS Plaintiff Nancy Burton submits herewith her memorandum of law in opposition to the motion to dismiss dated June 22, 2021 filed on behalf of the Town of Redding defendants ("Redding Defendants”) pursuant to Practice Book §10-31. Introduction The Redding Defendants’ confused Motion to Dismiss asserts the entire complaint should be dismissed on grounds it seeks to “relitigate” issues which plaintiff does not seek to litigate in this matter and/or it seeks to dismiss Counts 6 (Illegal Search and Seizure) and 7 (Violation of 42 U.S.C. §1483) of the Second Amended Complaint. The motion is without merit. Plaintiff adopts and incorporates herein her memoranda, affidavits and exhibits as filed in this matter in opposition to the State Defendants and Defendants David Philip Mason, Elinore Carmody and Dennis Gibbons. Standard of Review “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. “In contrast if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . .If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . .or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . .the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. . . . “Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . Conboy v. State, 292 Conn. 642, 650-52 (2009), cited and quoted in Columbia Air Services, Inc. v. Department of Transportation et al., 293 Conn. 342 (2009). In this case, State Defendants have presented a jurisdictional challenge the determination of which is dependent on the resolution of numerous critical factual disputes by means of an evidentiary hearing to establish jurisdictional facts. Id. Facts Redding Defendants’ characterization of plaintiff's use of her property (“illegal operation of a goat farm”) is inaccurate. As the State of Connecticut is a “right-to-farm state’ and the Town of Redding Zoning Regulations permit farming operations in ‘ Connecticut's “right-to-farm” law is set forth in Conn. Gen. Stat. §19a-341 as follows: Agriculture or farming operation not deemed a nuisance. Exceptions. (a) Notwithstanding any general statute or municipal ordinance or regulation pertaining to the nuisances to the contrary, no agricultural or farming operation, place, establishment or facility, or any of its appurtenances, or the operation thereof, shall be deemed to constitute a nuisance, either public or private, due to alleged objectionable (1) odor from livestock, manure, fertilizer or feed, (2) noise from livestock or farm equipment used in normal, generally acceptable farming procedures, (3) dust created during plowing or cultivation operations, (4) use of chemicals, provided such chemicals and the method of their application conform to practices approved by the Commissioner of Energy and Environmental Protection or, where applicable, the Commissioner of Public Health or (5) water pollution from livestock or crop production activities, except the pollution of public or private drinking water supplies, provided such activities conform to acceptable management practices for pollution control approved by the commissioner of Environmental Protection; provided such activities conform to acceptable management practices for pollution control approved by the Commissioner of Energy and Environmental Protection; provided such agricultural or farming operation, place, establishment or facility has been in operation for one year or more and has not been substantially changed, and such operation follows generally accepted agricultural practices. Inspection and approval of the agricultural or farming operation, place, establishment or facility by the Commissioner of Agriculture or his designee shall be’ prima facie evidence that such operation follows generally accepted agricultural practices. residential zones and plaintiffs property is located in a “farming and residential” zone and was historically a farm, plaintiffs asserted operation of a “goat farm’ is a legal and permitted use in the Town of Redding. The “Redding Defendants”? mischaracterize the Redding Zoning Regulations as setting “the quantity limit” of goat ownership on plaintiff's property at nine (9). This statement is incorrect. The Redding Zoning Regulations apply a formula based on property acreage to set limits on the number of goats which may occupy the property, regardless of ownership, as of right, that is, without the need to apply for a zoning permit. The formula applies whether the property is well suited to domesticated animal occupancy or completely unsuitable — that is, under a strict reading of the regulations, an owner of a parcel of land which is entirely under water all the time is nevertheless entitled, as of right, to keep however many animals on the property conform to the formula. In this case, plaintiffs property consists of 3.6 acres and the Zoning Commission has applied the formula to allow 9 adult goats as of right on plaintiff's property. A property owner desiring to keep more than the number of animals as allowed as- of-right may apply to the Zoning Commission for a Land Management Plan. The cases of Nancy Burton v. Redding Zoning Commission and Nancy Burton v. Julia Pemberton were ordered transferred to the Complex Litigation Docket at Waterbury as presided over by Get first name Hon. Bellis. Judger Bellis set a briefing schedule in the zoning case and ordered a status conference to take place on March 10, 2021 at 10 AM. By this date, plaintiff had temporarily relocated to an address outside Redding where, just as she was preparing to participate in the remote conference before Judge Bellis, DOAG agents and members of the Redding Police Department converged on plaintiffs Redding property unannounced, broke apart her gate and proceeded to seize her goats, invade her home, rifle through her things, take photographs and transport the goats to the DOAG facility for large animals. The goats were uniformly healthy and well- cared for by plaintiff and there was no cause for their removal. Thereafter, Redding Town Counsel Steve Stafstrom, co-counsel herein for the Town of Redding, unilaterally withdrew Pemberton without prior notice to plaintiff. In the meantime, plaintiff had located a 501(c)(3) charitable animal sanctuary in Harwinton, Connecticut, in addition to two other animal sanctuaries and numerous 2 The defendants Town of Redding, Redding First Selectwoman Julia Pemberton, Redding Police Chief Mark O’Donnell, Redding Police Department, Redding Health Department and Redding Building Department refer to themselves in their motion to dismiss and memorandum of law in support of their motion to dismiss collectively as “the Redding Defendants” and plaintiff will refer to them as such herein. 3 private individuals who were willing to adopt all of plaintiff's goats. As she had no present plans to relocate her goats to Redding, and has put her Redding property on the market for sale, plaintiff withdrew her Burton v. Zoning Commission land management appeal. DOAG filed a “verified petition’ seeking temporary care and custody of plaintiff's goats dated March 18, 2021. A hearing on such petition was conducted by Hon. Susan Quinn Cobb on March 30 and April 8, after which she entered an order of temporary care and custody pursuant to Conn. Gen. Stat. 22-327a. Plaintiff has filed numerous motions challenging such order, which are pending! As the case has proceeded, plaintiff has become aware of the deplorable conditions in which her goats are kept with the two-month delayed release of various DOAG reports and records. It appears that her goats are deliberately and routinely left unattended for 17 hours between 3:30 PM and 8:30 AM (71 per cent of the time) and that they are overcrowded in stalls with no access to the outside, poorly fed and ina stressful state. To date, plaintiff is aware that one of her most prized goats died unattended while pregnant with three female unborn kids. A male kid was spontaneously aborted in a severely dehydrated state after the DOAG had failed to detect that his mother was pregnant. A female kid lived only one day after birth under circumstances that strongly suggest stressful conditions being suffered by the nanny goat. Plaintiff has requested that this Court take judicial notice of State of Connecticut ex rel. Jeremiah Dunn v. 65 Goats et al, HHD-CV-21-6139702-S. On April 16, 2021, plaintiff filed her “Motion to Relinquish Ownership of Goats for Immediate Release to Qualified Animal Rescue Facilities and Individuals As Identified by Defendant;” the motion has yet to be acted upon. If granted, the goats would be teleased to superior care and living conditions at no cost to the state. Legal Argument 1. The doctrine of collateral estoppel is inapplicable 4 Redding Defendants argue that plaintiff is attempting to “relitigate” whether “her goat farm was a legally permitted use” but is barred from doing so by the doctrine of, collateral estoppel. There is no basis in the record that this is what plaintiff is attempting to do nor that plaintiff's “goat farm” is not legally permissible. Plaintiff's 3.6-acre property is now and will be in the future, unless the Redding Zoning Regulations change, eligible for keeping nine (9) goats as of right on her property as a legally permissible use, without the need to apply for a permit. This issue has never been litigated nor did it need to be litigated and thus the Town Defendants are wrong to state that issue “has already been conclusively established against the plaintiff in the foregoing civil actions.” Moreover, insofar as the Redding Town Counsel Steven Stafstrom — co-defense counsel in this action - unilaterally withdrew the Redding Defendants’ Counterclaim in Burton v. Pemberton, X06-CV-19-5027712-S, without notice to plaintiff, the allegations and relief sought in the counterclaim were not established but rather were abandoned and waived. Finally, Redding Defendants state that the Town and its First Selectmen were granted summary judgment in Pemberton. This statement is correct with regard to plaintiffs claim of municipal estoppel only. What they omit to acknowledge is that the Superior Court (Brazzel-Massaro, J.) denied the Town and Ms. Pemberton’s motion for summary judgment on their counterclaim. (Nancy Burton v. Julia Pemberton et al., Memorandum of Law on Motion for Summary Judgment, Entry #108.02, 10/2/2020, Plaintiff attaches hereto as Exhibit A the two-page Counterclaim as to which Judge Brazzel-Massaro denied the Town’s motion for summary judgment on grounds the material facts were in dispute. 2. Illegal Search & Seizure Redding Defendants argue that plaintiff's search and seizure claim (Count 6 of the Second Amended Complaint) should be dismissed because the issues pertinent to the claim have already been fully and fairly litigated against plaintiff. Once again, Redding Defendants present a grossly false and incomplete recitation of indisputable facts. Inter alia, they assert that Judge Cobb’s “Care and Custody Order’? ordered “that the plaintiff relinquish her ownership rights.” To the contrary, Judge Cobb did not order that plaintiff herein “relinquish her ownership rights.” Plaintiff notes that within a week of Judge Cobb's order, she filed her Motion to Relinquish Ownership of Goats for Immediate Release to Qualified Animal Rescue Sanctuaries and Individuals as Identified by Defendant [plaintiff herein]. Dunn v. $ State of Connecticut ex rel. Jeremiah Dunn v. 65 Goats et al. (“Dunn v. 65 Goats”) HHD-CV-21-6139702-S, Entry #136.00, April 9, 2021. 5 65 Goats, Entry #142, April 16, 2021. In the intervening three months, the motion has been claimed and reclaimed but not acted on: Furthermore, Redding Defendants’ argument is based on the false notion that Judge Cobb “conclusively determined that the information on which the warrant was obtained — which plaintiff now challenges as fraudulent — was in fact reliable. The existence of probable cause justifying the warrant was fully and fairly litigated, actually considered by the court, and such finding was necessary to the determination that custody remains with the State.” In fact, the opposite is true. The hearing Judge Cobb conducted was the first, preliminary step of a two-step hearing process and she clearly noted at the time on the record that the standard of evidence she elected to apply was a lesser, looser standard which would be replaced by a more rigorous standard when it came time to convene the second hearing on whether “temporary care and custody” would become “permanent care and custody.” Plaintiff herein vigorously disputes any assertions that her goats were “neglected” or “cruelly treated” under her care and asserts no evidence was presented from which such conclusions could be credibly and legally drawn. Contrary to the Redding Defendants’ pronouncements, Judge Cobb's Order of Temporary Care and Custody is far from a final order: it remains subject to plaintiff's yet-unheard motion for reargument, motion for rehearing, motion to vacate and others. The governing statute itself presumes a second hearing on a stricter standard by which the Court would have authority to vacate the temporary order. Moreover, Judge Cobb repeatedly refused to allow evidence or entertair| consideration of whether the search and seizure warrant was appropriately and legally issued despite plaintiffs repeated requests during the hearing that she do so. Plaintiff was moved to file her written Motion to Suppress and Return of Seized Property (Entry #134.00, April 8, 2021) and supplement thereto (Entry #160.00, April 26, 2021)(attached as Exhibits N and O respectively to plaintiff's Memorandum of Law in Opposition to State Defendants’ Motion to Dismiss filed in this case on July 22, 2021. Each was ordered “Off’ sua sponte by the Court (Hons. David Sheridan and Jane Scholl). Indeed, Judge Cobb even ruled out as inadmissible without explanation several damning photographs plaintiff took depicting David Philip Mason, plaintiff's neighbor and a defendant herein, as he cruelly chased and panicked plaintiff's goat in a wild stampede straight into the road, an act for which plaintiff was arrested, not Mr. Mason: Mr. Mason. (He and co-defendants Elinor Carmody and Dennis Gibbons were the primary “undisclosed informants” for the DellaRocco search and seizure warrant application. Their — and Mr. DellaRocco’s and Jeremiah Dunn’s - complete lack of credibility are demonstrated in Plaintiff's Memorandum, Counteraffidavit and Exhibits filed contemporaneously herewith in opposition to the State Defendants’ motion to dismiss. Thus, Judge Cobb — and others of the judiciary who participated on-and-off in these proceedings — defiantly refused to consider plaintiff's challenge to the existence of probable cause justifying the warrant, let alone fully and fairly litigating the issue, although plaintiff agrees with Redding Defendants that such finding was “necessary to [a lawful] determination that custody remain (temporarily) with the State.” The Redding Defendants recognize that plaintiff ‘s complaint asserts that they acted “under color of state law’ to violate plaintiff's Fourth Amendment rights from unreasonable search and seizure when they, together with the State Defendants, acted in concert to “deliberately and maliciously contribute to the submission of a false and fraudulent application for a search and seizure warrant regarding plaintiff's property . . . which was granted.” Their effort to dismiss the search and seizure count relies entirely on false assertions that “the validity of the search and seizure warrant, and the reliability of the information contained therewithin, has already been litigated and determined [and] plaintiff should be collaterally estopped from asserting her Fourth Amendment search and seizure claim here.” While Redding Defendants contend “[t]here is no evidence she can produce that would mandate a different outcome,” once given a full and fair opportunity to do so, plaintiff will produce evidence that will mandate a different outcome. Redding Defendants further claim that they are entitled to qualified immunity for their actions relating to plaintiff's claim that their actions caused a violation of her Fourth Amendment rights. This argument, too, is without merit under the present facts. Qualified immunity may be available, for example, to a police officer conducting a search “where clearly established law does not show that the search violated the Fourth Amendment. . . . The inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Pearson v. Callahan, 555 U.S. 223, 243-44 (2009). Here, the Redding Defendants participated in the seizure (theft) of plaintiff's goats without probable cause and in the absence of evidence that plaintiff failed to provide a single one of them with food, water, hay, shelter or veterinary care. Indeed, she lavished 24-hour round-the-clock care. Under these facts, Redding Defendants’ behavior was wanton, willful, malicious and illegal. They did not identify a single goat with medical or physical issues that plaintiff was not attending to in an appropriate manner. Case law on the subject of animal cruelty mandates that a seizing officer identify an abused animal on an individualized basis. See, e.g., State v. Hearl, 182 Conn. App. 237 (2018). The State and Redding Defendants did not do this. They impermissibly responded to screams of hysteria from three individuals ignorant of goat behavior intent on selling their homes at inflated prices during the COVID-19 pandemic. They accepted at face value the nonsense perpetuated by plaintiff's neighbors that plaintiff's goats — while uniformly robust — were underfed or malnourished because they seemed to be perpetually in pursuit of food. The fact is: a goat’s extra stomach — its rumen — requires frequent ingestion of roughage to function properly. They said plaintiff's goats were dehydrated — when they showed no physical signs of dehydration — because plaintiff only poured four gallons of water into a bucket at a time — when the capacity of the bucket was four gallons. They accused plaintiff of abusing her goats because the goats were making a lot of noise one evening: it happened to be the twice-annual mating period when the screams of a lusty goat are recognized by people with any knowledge of goats as being a sign of good health. They said goats huddled closely together at night because they lacked sufficient space when in fact even on the hottest day goats will squeeze closely together because that is what goats do. The Redding defendants took to surveilling plaintiff while she was attending a medical appointment out of town; they surveilled her when she was filling jugs of pure water from an artisanal spring for the goats and their good health at a location 60 miles’ away from Redding. The Redding Defendants seized plaintiff's beautiful and healthy, playful goats on false and malicious pretenses so they could take them to temporary confinement before consigning them to auction and slaughter — under the guise of promoting animal welfare. The Redding Defendants have carried out a sadistic terror campaign outside the law that shocks a civilized conscience. Their motion to dismiss should be denied and the case allowed to proceed. 3. 42 U.S.C. §1983 Count The Redding Defendants incorporate their “search and seizure” arguments for dismissal in their discussion of plaintiff's 42 U.S.C. §1983 count. Correspondingly, plaintiff incorporates her “search and seizure” response to her 42 U.S.C. §1983 argument. The 42 U.S.C. §1983 Count additionally alleges deprivations of her due process and First Amendment rights. As Redding Defendants have not countered plaintiff's allegations with facts supported by sworn affidavits, the Court must assume the truth of the allegations of the complaint and construe them most favorably for the plaintiff. Redding Defendants have pending their “hybrid” motion to strike/motion to dismiss dated June 2, 2021. Should the Court determine that the allegations of the complaint lack specificity, plaintiff should be permitted to replead. Conclusion For the above-stated reasons, the Redding Defendants’ motion to dismiss should be denied. THE PLAINTIFF 147 Cross Highway Redding CT 06896 Tel. 203-938-3952 NancyBurtonCT@aol.com CERTIFICATION This is to certify that a copy of the foregoing Memorandum of Law in Opposition to Redding Defendants’ Motion to Dismiss was delivered electronically to all counsel of record on this date. Fas 10 EXHIBIT A COUNTERCLAIM a 1 The Counterclaim Plaintiff is the Defendant Town of Redding, which acts for zoning enforcement through its agent, the Redding Zoning Enforcement Officer. 2 The Counterclaim Defendant is the Plaintiff Nancy Burton (“Burton”). 3 The Redding Zoning Regulations allow a maximum of nine goats to be kept as of right on Burton’s property at 147 Cross Highway, in the absence of a land management plan approved by the Redding Zoning Commission.! 4 There is no approved land management plan for Burton’s property. 5 As admitted in the Complaint, Burton for at least seven years has kept well in excess of nine goats on her property in violation of the Redding Zoning Regulations. 6 On October 17, 2017, the Redding Zoning Enforcement Officer issued and served a cease and desist order to Burton, requiring compliance with the requirements of the Redding Zoning Regulations as to the number of goats kept on her property. A copy of the cease and desist order is attached to this Counterclaim as Exhibit A. 7 Burton appealed the cease and desist order to the Redding Zoning Board of; Appeals, which denied the appeal and upheld the cease and desist order on December 19, 2017. 8 Burton appealed the decision of the Zoning Board of Appeals to the Superior Court, which denied the appeal on June 5, 2019, Burton v. Redding Zoning Board of Appeals, Docket No, DBD-CV-18-5012961 S. 9. To date, Burton has failed to remedy the zoning violation. 10, The zoning violation is willful because Burton has maintained an illegal number of goats, and has allowed the goats to breed and increase the herd, for at least seven years and in spite of the cease and desist order informing her of the violation. 1, The continued violation of the Redding Zoning Regulations by reason of Burton’s neglect and/or willful refusal to remedy the violation is a matter of public concern for which the Town of Redding has no adequate remedy at law. WHEREFORE, the Counterclaim Plaintiff claims: 1 A permanent injunction restraining the Counterclaim Defendant from keeping numerous goats on her property in excess of the number allowed by the Redding Zoning Regulations. 2. A permanent injunction directing the Counterclaim Defendant to immediately correct the violation referenced herein, by removal of as many goats as necessary so that the property complies with the Redding Zoning Regulations; and to refrain from any future violation of said Regulations; 3 Such other relief as in law or equity the Court may deem appropriate. THE COUNTERCLAIM PLAINTIFF TOWN OF REDDING, CT By: /s/ Michael N. LaVelle Michael N. LaVelle Pullman & Comley, LLC 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601-7006 Juris No. 47892 Telephone 203 330 2000 Facsimile 203 576 8888 mlavelle@pullcom.com Its Attorneys