Opinion
No. LLI CV 07 4006012S
June 24, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #129.00
The plaintiff, Anne Marie Nonkin, has filed the present action to recover damages and to enjoin the further construction of a second-story addition to her neighbor's home in Salisbury, Connecticut. The plaintiff alleges that the second story is being constructed in violation of the zoning regulations for the town of Salisbury.
On January 15, 2009, the plaintiff filed a five-count amended complaint. The first three counts of the complaint are directed at the defendant neighbors, Dean and Margaret Haubrich, and allege violation of the zoning regulations, violation of an easement and trespass.
At issue in the present motion are counts four and five of the complaint, which are directed at the Salisbury Planning and Zoning Committee and its administrator, Nancy Brusie (municipal defendants). The gravamen of counts four and five are that the plaintiff informed the municipal defendants that her neighbors were violating the zoning ordinances and exceeding their building permit, and the municipal defendants refused to prevent them from building their second story. Count four seeks a writ of mandamus and an injunction against defendants for their failure to enforce the Salisbury zoning regulations. Count five, which incorporates the allegations in count four, seeks damages for her loss of privacy, the loss of her view of Lake Wononscopomuc, and the diminution in the value of her property.
On January 20, 2009, the municipal defendants filed a motion to strike counts four and five of the amended complaint. They move to strike both counts on the ground of governmental immunity because the enforcement of zoning regulations is a discretionary act, and therefore the town cannot be held liable for failing to enforce them. Because such zoning enforcement is discretionary, the municipal defendants also claim that the plaintiff is not entitled to a writ of mandamus in count four. Additionally, the municipal defendants move to strike count five on the ground they are entitled to governmental immunity pursuant to General Statutes § 52-557n(b)(7), because there are no allegations that the town's alleged inaction "constitute[d] a reckless disregard for health or safety" as required by the statute.
On February 24, 2009, the plaintiff filed a memorandum in opposition to the motion to strike. She claims that the municipal defendants are not entitled to municipal immunity because they breached a private, ministerial duty as opposed to a public, discretionary duty. Even if the duty is discretionary, the plaintiff argues that she falls under an exception to governmental immunity because she was an identifiable person subject to imminent harm. She contends that count five is also legally sufficient because it alleges a failure to inspect the Haubrich property and therefore is exempted from governmental immunity pursuant to General Statutes § 52-557n(b)(8). She further alleges that a motion to strike is inappropriate because all the relevant facts are not apparent from the pleadings and are likely to be perceived in a different light at trial.
By reply, the municipal defendants counter that governmental immunity does not hinge on whether the duty is public or private, and even if it did, zoning enforcement is a public duty. They also deny that § 52-557n(b)(8) applies because the plaintiff has not pleaded any facts regarding a duty to inspect. Finally, the municipal defendants dispute that the plaintiff is an identifiable person subject to imminent harm.
Legal Standard
In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because "governmental immunity must be raised as a special defense in the defendant's pleadings . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006); see also Vejseli v. Pasha, 282 Conn. 561, 566 n. 6, 923 A.2d 688 (2007).
The plaintiff contends that a motion to strike is inappropriate because all facts are not apparent from the face of the pleadings and likely will be viewed differently at trial. Apart from this bare statement, the plaintiff's brief does not discuss the issue or cite any authority. If the plaintiff needed to plead more facts, then she could have revised her complaint or requested a temporary stay of the motion to strike in order to conduct additional discovery. Violano v. Fernandez, 280 Conn. 310, 325-26, 907 A.2d 1188 (2006). It is clear from the face of the complaint that the acts and omissions of the municipal defendants were governmental functions, and therefore, the municipal defendants are entitled to file a motion to strike on the ground of governmental immunity.
Count Four
Count four seeks relief by two different remedies: a mandatory injunction and a writ of mandamus. The municipal defendants first argue that count four can be stricken entirely on the basis of governmental immunity because the enforcement of zoning regulations is a discretionary act. The municipal defendants, however, rely on common-law principles of governmental immunity, which only apply to tort claims. "[A]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." (Emphasis added; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). "Over the years . . . [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." (Citation omitted; emphasis added; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). Mandatory injunctions and writs of mandamusfn1 are not tort claims, and therefore common-law governmental immunity is inapplicable.
The defendants also argue that writs of mandamus in particular are legally insufficient because zoning enforcement is a discretionary act. "A writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . [The court's discretion] will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006).
"It is elementary that, while mandamus is available to compel the performance of a purely ministerial act, it will not lie to direct the performance of an act involving the exercise of judgment or discretion." (Internal quotation marks omitted.) State ex rel. Scala v. Airport Commission, 154 Conn. 168, 176, 224 A.2d 236 (1966). Nevertheless, "[m]andamus will lie even if the exercise of the duty involves discretion, so long as existence of the duty is ministerial, and provided that the order issued does no more than require the duty to be performed, leaving the manner of its performance to the good-faith discretion of the official charged." (Internal quotation marks omitted.) Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 718-19, 427 A.2d 866 (1980).
The plaintiff contends that the municipal defendants had a ministerial duty to enforce the zoning regulations. She alleges in both counts that the neighbor's home was clearly a nonconforming use under the Salisbury zoning regulations, and that the regulations, as they existed at the time, forbade any expansion of the nonconforming use, including the addition of a second story. The plaintiff, inter alia, cites Article X, § 1004 of the Salisbury zoning regulations, which states in relevant part: "No non-conforming [building] or [structure] shall be altered, enlarged or extended in any way that increases the area or space of that portion of the building or structure which is non-conforming. This prohibition includes but is not limited to second story additions or similar additions to the height or bulk of that portion of the building which is nonconforming."
The plaintiff argues that the zoning violation at issue is so clear as to make enforcement a ministerial duty. The clarity of the violation is irrelevant in determining whether the municipal defendants had a ministerial duty to enforce the violation. The clarity of the violation is the subject of the second prong of the mandamus analysis, which dictates that the party seeking mandamus must have "clear legal right" to the duty. The zoning regulations cited by the plaintiff are silent as to whether the enforcement of those regulations are discretionary or ministerial.
The plaintiff also cites General Statutes § 8-12 as evidence that zoning enforcement is a ministerial duty. Section 8-12 states in relevant part: "If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land . . . Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter . . ."
Connecticut Superior Courts have universally held that "the enforcement of zoning regulations is a quintessential discretionary governmental function performed solely for the direct benefit of the public." (Internal quotation marks omitted.) Greenfield v. Reynolds, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 07 4023026 (November 18, 2008, Bellis, J.), quoting Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 0000716343 (May 22, 2002, Lager, J.); see also Stewart v. Gothie, Superior Court, judicial district of New London, Docket No. 549831 (April 13, 2000, Hurley, J.T.R.); Pierotti v. Palladino, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0134075 (February 3, 1994, Lewis, J.); Maier v. Tracy, Superior Court, judicial district of Danbury, Docket No. 301766 (August 25, 1992, Fuller, J.) ( 7 Conn. L. Rptr. 292).
Courts have also held that § 8-12 does not provide a basis for a writ of mandamus against municipal zoning authorities: "While [§ ]8-12 . . . allows a municipality, acting through an official authorized to enforce the zoning regulations, to bring a zoning enforcement action, it does not create any right for members of the public to bring such action, force a municipality or any of its officials to do so or claim damages." Stewart v. Gothie, supra, Superior Court, Docket No. 549831; see also Greenfield v. Reynolds, supra, Superior Court, Docket No. CV 074023026.
Even if this court were to construe § 8-12 as establishing a ministerial duty to enforce the zoning regulations, the plaintiff, in order to be entitled to a writ of mandamus, must seek an order that "does no more than require the duty to be performed" and leaves "the manner of its performance to the good-faith discretion of the official charged." Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, supra, 179 Conn. 718-19. The plaintiff's complaint does not leave the manner of enforcement to the discretion of the zoning officials. She alleged that she petitioned the zoning authority to "take steps to prevent the unlawful construction" and seeks a court order to have the second-story construction halted and dismantled. Section 8-12 does not establish a ministerial enforcement mechanism: "General Statutes § 8-12 provides a number of ways that a city can punish flagrant zoning scofflaws: Cease and desist orders, fines and, even in certain cases, imprisonment." Garrison v. Planning Board, 66 Conn.App. 317, 324-25, 784 A.2d 951, cert. denied, 258 Conn. 944, 786 A.2d 429 (2001). The plaintiff's complaint, as pleaded, does not leave enforcement to the discretion of the municipal defendants.
Furthermore, both the writ of mandamus and a mandatory injunction require that the plaintiff have no other adequate remedy at law. "Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . Ordinarily, mandamus will not lie where the aggrieved party has an adequate remedy either at law or in equity." (Citation omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982).
"The Connecticut Supreme Court has explicitly stated that [a]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation . . . The plaintiffs may bring a private enforcement action and seek injunctive relief . . . In these cases, the Supreme Court found that the plaintiff's proper recourse was to commence a cause of action seeking to enjoin the landowner who is violating the town's zoning regulations . . . This would be the proper course of action rather than this court granting the extraordinary remedy of a writ of mandamus." (Citation omitted; internal quotation marks omitted.) Greenfield v. Reynolds, supra, Superior Court, Docket No. CV 07 4023026, quoting Battistoni v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 00 83195 (September 6, 2001, Agati, J.);
Sullivan v. West Hartford Superintendent of Building Inspection, 29 Conn.Sup. 439, 290 A.2d 899 (1972); see also Stewart v. Gothie, supra, Superior Court, Docket No. 549831.
Because the plaintiff can sue for damages and injunctive relief against her neighbors for violations of zoning regulations, which is the basis of count one in the plaintiff's complaint, she has adequate remedies at law that prevent recovery by mandamus or injunction against the municipal defendants. Consequently, the motion to strike count four is granted.
Count Five
The municipal defendants move to strike count five on the ground that they are entitled to governmental immunity pursuant to General Statutes § 52-557n(b)(7). Section 52-557n(b)(7) states: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . ." The municipal defendants contend that count five does not allege that the zoning violations constitute a reckless disregard for health or safety as required by the statute.
This court agrees with the defendants. The plaintiff alleges that the municipal defendant's failure to enforce the zoning regulations was an "intentional reckless disregard of their ministerial duty," but there are no allegations as to how that failure impacted either health or safety. "[A] finding of recklessness alone is insufficient for liability to be found by the court, as the exception to immunity is further limited to instances constituting `a reckless disregard for health or safety.'" Satagaj v. Portland, Superior Court, judicial district of Middlesex, Docket No. CV 065001169 (February 20, 2009, Taylor, J.). The plaintiff alleges that her property value and her privacy have been diminished, but these concerns are unrelated to health or safety. Because there are no allegations that health or safety was implicated, count five must be stricken.
The plaintiff's arguments to the contrary are unavailing. First, the plaintiff claims that count five falls under the "imminent harm" exception to governmental immunity. "The immunity from liability for the performance of discretionary acts . . . is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 95 n. 4, 931 A.2d 859 (2007). The Supreme Court recognized these exceptions to common-law claims of governmental immunity, and after the enactment of § 52-557n, continued to recognize the exceptions in the context of § 52-557n(a)(2)(B). See CT Page 10983 id., 107. The Connecticut appellate courts, however, have not opined whether the "imminent harm" exception applies in the context of § 52-557n(b), and more specifically, "§ 52-557n(b)(7) and (8) have received little attention from our appellate courts . . ." Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (September 21, 2007, Upson, J.).
Section 52-557n(a)(2)(B) states: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Several superior court decisions have applied the "imminent harm" exception to a claim of governmental immunity pursuant to § 52-557n(b), but none have explained why that exception should be available under this subsection. See, e.g., Shukis v. Board of Education, Superior Court, judicial district of Middlesex, Docket No. CV 040104038 (Jun. 24, 2005, Aurigemma, J.); Embree-Willis v. Point Properties, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 01 0084962 (December 28, 2001, DiPentima, J.); Farnsworth v. Horrigan, Superior Court, judicial district of New Haven, Docket No. CV 95 3073914 (January 22, 1999, Jones, J.).
These Superior Court decisions cite to Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), for the "imminent harm" exception, but that decision does not address § 52-557n(b). Evon is factually analogous because it applies the imminent harm exception where there were allegations that city officials were negligent in failing to inspect and enforce various regulations and codes involving rental units, as the court noted in Farnsworth v. Horrigan, supra, Superior Court, Docket No. CV 95 3073914. Nevertheless, Evon does not discuss or even cite to § 52-557n, presumably because the cause of action in Evon, which stemmed from a fire on November 1984, accrued prior to October 1, 1986, the effective date of § 52-557n. See Jordan v. Branford, Superior Court, judicial district of New Haven, Docket No. CV 88 0270801 (July 29, 1994, Hodgson, J.) ( 9 C.S.C.R. 933) (holding that the effective date of § 52-557n was not retroactive). Because Evon applied the "imminent harm" exception under a common-law claim of governmental immunity prior to the effective date of § 52-557n, Evon is not controlling.
From the plain language of § 52-557n(b), the legislature intended this subsection to provide governmental immunity notwithstanding the common law and subsection (a): "[S]ubsection (b) specifically enumerat[es] ten situations in which neither a municipality nor its employees, officers or agents could be sued for money damages under either the provisions of subsection (a) or at common law." Rivera v. Sitaris, Superior Court, judicial district of Hartford, Docket No. CV 98 0584642 (April 28, 2003, Sheldon, J.). The "imminent harm" exception is a common-law exception. Given that § 52-557(b) was intended to provide governmental immunity apart from the common law, it follows that the common-law exceptions are inapplicable unless the subsection specifically authorizes it. Section § 52-557(b)(7) does not indicate that the "imminent harm" exception applies, and therefore the plaintiff's argument fails.
Additionally, several superior courts have construed § 52-557(b)(7) and (8) as codifying the common-law "recklessness" exception to governmental immunity. See, e.g., Vejseli v. Pasha, supra, Superior Court, Docket No. CV 02 0172369; Tynik v. Redcoat Home Builders, Inc., Superior Court, judicial district of New Britain, Docket No. X03 CV 98 0488994 (March 22, 2002, Aurigemma, J.). The fact that the legislature chose to codify the "recklessness" exception and not the "imminent harm" exception in these two provisions is an additional reason to find that the "imminent harm" exception is inapplicable.
The plaintiff further contends that count five is legally sufficient because it alleges that the municipal defendants failed to inspect the property, and therefore the count is permitted by § 52-557n(b)(8). Section 52-557n(b)(8) states: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property . . . to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or constitutes a reckless disregard for health or safety under all the relevant circumstances . . ." According to the plaintiff's allegations, the municipal defendants had notice of violations of laws, namely, the zoning regulations, because she informed them.
While count five does allege that the municipal defendants had notice of the zoning violations, it does not allege that they failed to inspect or negligently inspected the property. In fact, the thrust of count five is that the municipal defendants knew of the violation but did nothing to stop it. A failure to inspect is not explicitly alleged, and it cannot be inferred.
For the foregoing reasons, the municipal defendants' motion to strike counts four and five is granted.