Opinion
No. CV 09-6005497-S
January 19, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff, Preferred Electric, LLC filed this seven-count complaint against the town of Suffield and its electrical building inspector, Edward Flanders, alleging in counts one through four, claims against Suffield for breach of contract, breach of supplement to contract, quantum meruit, and unjust enrichment; in counts five and six, claims against Flanders for misrepresentation and slander and libel; and in counts seven and eight, claims against Suffield and Flanders for interference with a business relationship. Defendants on May 19, 2010 filed this Motion to Dismiss because plaintiff failed to exhaust its administrative remedies by failing to appeal to the Building Code Board of Appeals.
Plaintiff alleges that pursuant to a contract with the town of Suffield, it installed 180 amperage conductor wiring on the town green. Flanders erroneously determined that 180 amperage was insufficient and that 200 amperage was required to comply with the state electrical building code. Flanders misrepresented the fact that he had conferred with a state electrical specialist regarding state amperage requirements when he ordered the plaintiff to increase the amperage within twelve hours, or forgo payment for its work. The plaintiff complied with Flanders' order after receiving an oral promise that it would be paid for the cost of increasing the amperage; however, the plaintiff has not been paid for any of its work. Further, town officials and Flanders have refused to allow the plaintiff to place bids for town electrical work, and Flanders has made disparaging comments regarding his work to the local newspaper.
I
General Statutes § 29-266(b) governs appeals from decisions of building officials regarding the state building code. It provides in relevant part: "When a person other than [an] owner [of a building or structure] claims to be aggrieved by any decision of the building official, such person or his authorized agent may appeal, in writing, from the decision of the building official to the board of appeals . . ." General Statutes § 29-266(b). No right to a direct appeal to the Superior Court would seem to be available because General Statutes § 29-266(b) and (d) requires that an aggrieved person exhaust his administrative remedies by appealing to the board of appeals and then to the codes and standards committee before appealing to the Superior Court.
However, as used in § 29-266(b), "any decision" is necessarily limited to decisions that a building official has the authority to make. See, e.g., State ex rel. Gold v. Usher, 138 Conn. 323, 325, (1951) ("[An administrative appeal] has no application to decisions made upon subjects over which the building inspector has no control."). A building official only has the authority to make decisions regarding "compliance with the provisions of the State Building Code" and the "mode [or] manner of construction or materials to be used in the erection or alteration of building or structures, pursuant to applicable provisions of the State Building Code." General Statutes § 29-261. Accordingly, a party aggrieved by a decision outside of the building inspector's control need not exhaust his administrative remedies pursuant to § 29-266(b).
II
Examining the complaint in this case reveals that the plaintiff is not appealing a permitting or demolition order nor is it appealing Flanders' erroneous interpretation of the code and subsequent order that the plaintiff increase the conductor wiring from 180 amperage to 200 amperage. In fact, the plaintiff complied with Flanders' order when it increased the amperage; Flanders' interpretation of the code and subsequent order merely preceded the facts that give rise to the current claims. Plaintiff's claims sounding in breach of contract, quantum meruit, unjust enrichment, misrepresentation, slander and libel, and interference with a business relationship are therefore distinguishable from those to which § 29-266(b) applies and do not require the taking of an appeal before commencing this action.
III
Even if the statute did apply once a building official has authorized the work, it would be futile to seek an administrative remedy based on the plaintiff's claims, because the board of appeals and by extension, the codes and standards committee would only have the power to "affirm" modify or reverse the decision of the building official . . ." Conn. State Bldg. Code, 2005 Supp., § 112.6. Moreover, the appeals board cannot render an award of damages for breach of contract, quantum meruit, unjust enrichment, misrepresentation, slander and libel, or interference with a business relationship, remedies available only in this Court.
Motion to dismiss denied.