Opinion
No. CV 04 4004887 S
January 31, 2005
RULING
Seeking to enjoin them from developing certain land as a golf course, the plaintiff commissioner has brought an action against several defendants. The complaint alleges that the state purchased development rights from the defendants' predecessor in interest, that such rights were recorded on the land records, and that this action seeks to enforce such rights. The general nature of the complaint is that pursuant to the legislatively sanctioned program allowing the commissioner of agriculture to preserve farmland by buying from farmers the right to develop land for other than agricultural purposes, the state had bought such rights in the 1980s. The defendants, the current owners of the land, are seeking to develop a golf course on the land.
Currently at issue is the commissioner's motion to strike all of the special defenses (#105) and the motion to strike the counterclaims (#104) asserted by the defendants. I have thoroughly read the papers submitted by the parties, and authority cited therein, and have considered the arguments advanced at the hearing held on January 14, 2005. The following rulings are issued in relatively succinct fashion; the parties are presumably better served by efficiency than by prolix ratiocination.
The standards to be applied in considering motions to strike are quite straightforward:
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003).
Broadnax v. New Haven, 270 Conn. 133, 173 (2004).
1. First Special Defense
The first special defense claims that the plaintiff commissioner of agriculture has no standing because the deeds indicate that the development rights were purchased by the state of Connecticut. It is plain, however, that the commissioner acting in his official capacity is acting as the state of Connecticut; see, e.g., University of Connecticut Charter A.A.U.P. v. Governor, 200 Conn. 386, 388 (1986). The commissioner has statutory authority to administer the program designed to preserve farmland. Section 22-26cc of the General Statutes. The commissioner is a proper party to attempt to enforce rights granted to the state in the circumstances presented. The motion to strike the first special defense is granted.
2. Second Special Defense
The defendants claim that the action is barred by laches. This defense is generally not available against a governmental entity; see, e.g., Joyell v. Commissioner of Education, 45 Conn.App. 486 (1997). Although the defendants have asserted delay in taking action to enforce the state's claimed rights, and have mentioned the preliminary steps that the defendants have reportedly taken to develop the area as a golf course, nothing has been alleged that would remove the matter from the general rule. For what it's worth, the paperwork submitted, which ordinarily would not be considered in the context of a motion to strike, shows that early warning of the state's intent to enforce its exclusive holding of development rights was provided in any event. The motion to strike the second special defense is granted.
3. Third Special Defense
The third special defense alleges that the action is barred by the prior actions in the Judicial District of New London. Ordinarily one would not consider the issue in the context of a motion to strike, because some consideration of matters outside the pleadings, most notably the pleadings and decision in the prior case, must be considered. This case presents a somewhat unusual circumstance, however. The prior action is set out in detail, and both parties have referred to the prior action and have provided copies of relevant pleadings and decisions to the court. In the circumstances, then, I will consider the matter; if need be, because of the consideration of facts outside of the pleadings in this case, the issue will be treated as if presented on a motion for summary judgment.
It is clear, on a reading of the pleadings in the prior matter that the issue at stake in the present case, whether the state's rights are enforceable in the circumstances presented, could not have been decided in the prior case, which was an appeal from the Inland Wetlands Commission of the town of Preston and the Department of Environmental Protection. Though there was dicta in a memorandum of decision denying the defendant's (in that case) motion to dismiss which may be construed as consistent with the defendants' (in this case) claim in this case, judgment was entered against the defendants in this case (plaintiffs in that case) on the narrow ground of failure to exhaust administrative remedies. The overall issue was whether the local inland wetlands agency and the DEP had lawfully ruled on the issue of proposed discharge into wetland areas. The state's purchase of development rights was not at issue. In context, the principles of res judicata have no application to the sequence alleged in the third special defense, as augmented by the documents provided. See, e.g., DeMilo and Company v. Commissioner of Motor Vehicles, 233 Conn. 281 (1995). The motion to strike the third special defense is granted.
The case was Landis v. Department of Environmental Protection, Judicial District of New London, No. CV 03 0127137.
Among many other considerations, the prior judgment was not based on the merits of the action, but rather on the exhaustion of administrative remedies. DeMilo, supra, 292.
4. Fourth Special Defense
The fourth special defense appears to allege that the state, in the administration of the program designed to preserve farmland, has violated the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. The factual allegations, recited at length, appear to claim that more money per acre was paid to influential people for development rights in several other acquisitions than was paid to the defendants' predecessors and, apparently, to a number of others. It is somewhat difficult to see how these allegations fit the requirements of RICO, which in general require a pattern of criminal activity with implications on interstate commerce, and which carries a four-year statute of limitations. There is no allegation of fraud or even inequitable conduct with regard to the purchase of the property rights in question. Although of course the pleadings are construed broadly for the purpose of a motion to strike, I simply do not find in the factual allegations a reasonable inference of a criminal pattern subject to RICO. See, e.g., H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989); see also Rini v. Zwirn, 886 F.Sup. 81 (E.D.N.Y. 1995) (governmental agency not liable under RICO). The allegations of the defense literally assert only that some people received more money per acre than others. Many factors can account for the differences, if true, and the program appears to contain a number of safeguards. See §§ 22-26cc et seq. of the General Statutes. The motion to strike the fourth defense is granted.
Even if there was some unfairness in the administration of the program, which apparently is alleged, there is nothing to suggest in the pleading that there was any unfairness as to this farm. It then becomes difficult to discern relevance to this particular cause of action.
5. Fifth Special Defense
The fifth special defense alleges unclean hands. No facts are asserted other than a reference to the allegations of the fourth special defense. There is no allegation that the state dealt unfairly in any way with the defendants' predecessor in interest. The motion to strike is granted.
6. Sixth Special Defense. The final special defense claims that only the federal department of agriculture and the local zoning authorities have jurisdiction to enforce the state's claimed rights. I find no facts alleged which support this claim, and the motion to strike this defense is granted.
Counterclaims
Two counts have been alleged: the first alleges that the plaintiff has no right to an injunction and that the defendants have been prejudiced by delay. The second claims inverse condemnation, in that the state has in effect taken development rights from the defendants without just compensation. The state suggests that both counts should be stricken because of sovereign immunity and that there are insufficient facts alleged to state a cause of action.
Sovereign immunity is, generally, a defense. If it is alleged as a defense, perhaps summary judgment would be granted. I do not consider sovereign immunity in the current state of the pleadings; I am mindful as well that it is possible in some circumstances, for the state to waive sovereign immunity by bringing an action itself.
The motion to strike the first count is granted, because there is insufficient indication, factual or otherwise, of the cause of action sought to be alleged. Is it a claim of vexatious litigation? Interference with contractual rights? In the current state of pleadings, I cannot tell what the claimed cause of action is.
The motion to strike the second count of the counterclaim is denied. Inverse condemnation is a cause of action, and, although there may well be facts which render the count ineffectual, the motion is decided by considering only the pleadings.
It may be worth noting that a relatively high assessment by the town does not necessarily mean that the state has "taken" property rights without compensation. Compare Cecarelli v. Board of Assessment Appeals, 49 Conn.Sup. 125 (2005).
Conclusion. The motion to strike the special defenses, #105, is granted in its entirety. The motion to strike the counterclaim, # 104, is granted as to count one and denied as to count two. The injunction currently in effect shall remain in effect until the motion for the temporary injunction is decided.
Beach, J.