Opinion
FSTCV156025055S
01-19-2016
Christopher Semenuk et al. v. Board of Management of Harbor Point Association, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Donna Nelson Heller, J.
The plaintiffs Christopher Semenuk and Andrea Semenuk commenced this action, returnable May 19, 2015, against the defendants Board of Management of Harbor Point Association, Inc. (the Board) and Harbor Point Association, Inc. (the Association) for declaratory relief and monetary damages following the Board's alleged cancellation of a vote by the members of the Association, a common interest community, on the plaintiffs' application to construct a pool and fence on their property located within the Association. On June 18, 2015, the defendants moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to exhaust their administrative remedies before filing this lawsuit (#101.00). The defendants submitted a memorandum of law and the affidavit of Nancy Cooper, the vice president of the Board, in support of their motion (#102.00). The plaintiffs filed a memorandum of law in opposition to the motion to dismiss on July 17, 2015, together with the affidavit of Andrea Semenuk (#105.00; #106.00). The defendants filed a reply memorandum on August 12, 2015 (#110.00).
The defendants moved to strike the affidavit of Andrea Semenuk on August 10, 2015 (#107.00; #108.00 (memorandum of law in support)). The plaintiffs filed a memorandum of law in opposition to the motion to strike the affidavit on August 18, 2015 (#112.00). Although the court has declined to strike the affidavit of Andrea Semenuk, the court has not considered any statements contained in the affidavit that are legal conclusions, facts not based on personal knowledge, or facts that are not relevant in its determination of the motion to dismiss.
The parties were before the court on the September 21, 2015 short calendar. The court heard argument from counsel and reserved decision at that time. For the reasons set forth below, the motion to dismiss is denied.
I
Practice Book § 10-30 provides in pertinent part that " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015). " [W]henever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
II
The plaintiffs allege the following in their four-count complaint, dated April 7, 2015. They are the owners of property located at 4 Pilot Rock Lane in Greenwich, Connecticut (the Pilot Rock Lane property). The Pilot Rock Lane property is part of the Association, a common interest community. The Pilot Rock Lane property is subject to the Harbor Point Association Deed Restrictions (the deed restrictions) and the Harbor Point Association Amended and Restated By-Laws (the bylaws). Pursuant to the deed restrictions and the bylaws, the plaintiffs submitted a revised application for the construction of a pool and fence on the Pilot Rock Lane property to the Board for a vote by all members of the Association. Under the deed restrictions, the members' approval could not be unreasonably withheld, and the failure to approve or disapprove an application within three weeks of its submission would operate as an automatic grant of approval.
Paragraph 4 of the deed restrictions provides that " [t]he plans, specifications, exterior color scheme and location of any building to be erected or altered on said premises must be first submitted to the grantor or its successors or assigns and approved by it or them in writing before being used and before excavations for or the construction thereof shall be commenced. Such approval shall not be unreasonably withheld, and if within three (3) weeks after such submission there has been no express approval or disapproval, approval shall be deemed granted."
On December 27, 2014, the Association president circulated a ballot with a copy of the plaintiffs' application to all Association members. On January 15, 2015, two days before the application would have been automatically granted, the Board unilaterally cancelled the vote during an executive session. The plaintiffs contend that when the Board rescinded the vote either not enough votes had been submitted, so that their application would have been automatically approved, or enough votes in favor of approving their application had already been cast. The vote was never completed, and the Board refused to provide the plaintiffs with an explanation as to why the vote was cancelled. The plaintiffs then sought the voting records, but the Board declined to comply on the basis of confidentiality. Despite later attempts, the plaintiffs have not received the voting records.
In Count I of the complaint, the plaintiffs allege that the defendants breached the deed restrictions and bylaws, and that the plaintiffs are entitled to a declaratory judgment that (i) the Board's decision to rescind their application was void, and (ii) their application is deemed approved in full. Count II alleges that the defendants violated General Statutes § 47-250, which bars the Board from taking any final action while in executive session, and seeks the same equitable relief as in Count I. Count III alleges that the defendants breached their obligation to provide records for inspection by the plaintiffs, as required by General Statutes § 47-260. In Count IV, the plaintiffs seek equitable relief and a declaratory judgment declaring that the deed restrictions and bylaws are unenforceable to the extent that they condition a homeowner's ability to construct a fence and/or a pool on obtaining the approval of the Association's members. Count V of the complaint is a claim for damages for spoliation of evidence.
General Statutes § 47-250(b)(1) provides that " [m]eetings shall be open to the unit owners and to a representative designated by any unit owner except during executive sessions. The executive board and those committees may hold an executive session only during a regular or special meeting of the board or a committee. No final vote or action may be taken during an executive session. An executive session may be held only to: (A) Consult with the associations attorney concerning legal matters; (B) discuss existing or potential litigation or mediation, arbitration or administrative proceedings; (C) discuss labor or personnel matters; (D) discuss contracts, leases and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage; or (E) prevent public knowledge of the matter to be discussed if the executive board or committee determines that public knowledge would violate the privacy of any person."
General Statutes § 47-260 provides: " (a) An association shall retain the following:
On June 18, 2015, the defendants moved to dismiss this action for lack of subject matter jurisdiction on the ground that the plaintiffs failed to exhaust their administrative remedies under General Statutes § 47-278(d)(1). The defendants contend that § 47-278(d)(1) required the plaintiffs to submit a written request for a hearing on any claim to enforce any rights granted or obligations imposed by the Association's declaration or bylaws, or under the Common Interest Ownership Act, General Statutes § 47-200 et seq., prior to commencing this action, and that the plaintiffs' failure to submit such a request deprives the court of subject matter jurisdiction. In response, the plaintiffs maintain that General Statutes § 47-278(d)(1) does not impose any mandatory preconditions to their filing suit.
The plaintiffs also claim that the exhaustion doctrine is inapplicable to homeowners associations.
III
" It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . ." (Citation omitted; internal quotation marks omitted.) Fairchild Heights Residents Association, Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 808, 82 A.3d 602 (2014). " [A] trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citations omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). " A primary purpose of the [exhaustion] doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 564-65, 821 A.2d 725 (2003).
" Because the exhaustion . . . doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs'] claim." (Citation omitted; internal quotation marks omitted.) Nyenhuis v. Metropolitan District Commission, 300 Conn. 708, 715, 22 A.3d 1181 (2011). The exhaustion doctrine is applicable where a party is first required to seek a declaratory ruling, file an administrative appeal, or obtain some other form of redress from an administrative agency or governmental official prior to commencing an action in the Superior Court. See, e.g., Fairchild Heights Residents Association, Inc. v. Fairchild Heights, Inc., supra, 310 Conn. at 811 (exhaustion doctrine required association of mobile home owners to seek declaratory ruling from department of consumer protection); Stepney, LLC v. Fairfield, supra, 263 Conn. at 568-69 (exhaustion doctrine required plaintiff to appeal town health ordinance to commissioner of public health); Doe v. Heintz, 204 Conn. 17, 33-34, 526 A.2d 1318 (1987) (exhaustion doctrine required claim for monetary damages to be brought before claims commissioner).
In Benton v. Regency at Newtown Condominium Ass'n, Superior Court, judicial district of Danbury, Docket No. CV-14-6014975-S (November 12, 2014, Doherty, J.) (59 Conn. L. Rptr. 290), the court declined to extend the exhaustion doctrine to bar an action against a condominium association where the plaintiff had not followed certain grievance procedures in the defendant condominium association's bylaws before filing suit. The court explained that " [t]he exhaustion doctrine has only ever been applied outside of the administrative appeals context to grievance procedures set forth in collective bargaining agreements; see e.g. Gerardi v. Bridgeport, 294 Conn. 461, 472-73, 985 A.2d 328 (2010); and internal grievance processes by academic institutions. Neiman v. Yale University, 270 Conn. 244, 255, 851 A.2d 1165 (2004). Our Supreme Court has carved out these exceptions finding that [t]he rationale for the doctrine . . . is slightly different in each context." (Citation omitted; internal quotation marks omitted.) Id. Denying the defendants' motion to dismiss for lack of subject matter jurisdiction, the court concluded that " [n]either our Supreme Court nor any other court in Connecticut has ever extended the exhaustion doctrine to a condominium association's bylaws or other established grievance procedures. Nor have the defendants offered any compelling reason or rationale in support of applying the exhaustion doctrine to this context." Id.
The defendants contend that any reliance on Benton is misplaced because Benton dealt with the issue of whether the exhaustion doctrine applied to a unit owner's failure to pursue the remedies set forth in a condominium association's bylaws before filing suit. They maintain that the court lacks subject matter jurisdiction here because the plaintiffs did not exhaust their statutory remedies under General Statutes § 47-278(d)(1), not because the plaintiffs failed to pursue their rights, if any, under the Association's bylaws. This appears to present an issue of first impression, to which the court will now turn.
The plaintiffs contend that neither the Association's bylaws nor its rules and regulations provide for any type of grievance procedure.
IV
" [T]he requirement of exhaustion may arise from explicit statutory language . . . (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 100, 809 A.2d 492 (2002). " [W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." Citation omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. at 563. " [T]he exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency." Waterbury v. Washington, 260 Conn. 506, 530, 800 A.2d 1102 (2002).
Determining legislative intent requires applying well-settled principles of statutory construction. " Statutory construction is a question of law . . ." (Citation omitted.) Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). " When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." ((Citation omitted; internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). " In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." (Citations omitted.) Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 120, 774 A.2d 969 (2001).
The Common Interest Ownership Act, § 47-200 et seq., was passed in 1983. The act is codified in chapter 828 of the General Statutes. " The act is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act . . . The act addresses the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners. It entails the drafting and filing of a declaration describing the location and configuration of the real property, development rights, and restrictions on its use, occupancy and alienation; General Statutes § § 47-220, 47-224; the enactment of bylaws; General Statutes § 47-248 . . . the establishment of a unit owners' association [to manage the condominium community]; General Statutes § 47-243; and an executive board to act on . . . behalf [of the association]. General Statutes § 47-245. It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements, the placement of insurance, and the provision for common expenses and common liabilities. General Statutes § § 47-244, 47-245, 47-255, 47-249." (Citations omitted; internal quotation marks omitted.) Weldy v. Northbrook Condo. Ass'n, 279 Conn. 728, 735, 904 A.2d 188, 193 (2006).
Section 47-278 of the act applies to actions to enforce (i) the provisions of chapter 828, (ii) the declaration that creates a common interest community, and/or (iii) the bylaws that govern the conduct of a unit owners association. In 1995, the legislature amended § 47-278. The then existing provisions of § 47-278 were designated as subsection (a) and amended to authorize the court to award court costs. A provision that authorized an award of reasonable attorneys fees " in an appropriate case" was deleted. The legislature also added subsection (b), which authorized parties to resolve a dispute by any form of binding or nonbinding alternative dispute resolution, subject to certain conditions. 1995 Public Acts No. 95-187, § 26. In 1999, the legislature again amended § 47-278, effective July 1, 2010, replacing the provisions in subsection (a) relating to a claim for failure to comply and punitive damages with a provision for an action to enforce a right or obligation under chapter 828, the declaration or bylaws, and substituting the word " costs" for " court costs." Subsection (b) was also amended. 1999 Public Acts, No. 09-225, § 43.
The " declaration" is defined in General Statutes § 47-202(15) as " any instruments, however denominated, that create a common interest community, including any amendments to those instruments."
" Bylaws" are defined in General Statutes § 47-202(5) to mean " the instruments, however denominated, that contain the procedures for conduct of the affairs of the association regardless of the form in which the association is organized, including any amendments to the instruments."
General Statutes § 47-202(4) defines " association" or " unit owners' association" to mean " the unit owners' association organized under section 47-243." General Statutes § 47-243 provides that " [a] unit owners' association shall be organized no later than the date the first unit in the common interest community is conveyed. The membership of the association at all times shall consist exclusively of all unit owners or, following termination of the common interest community, of all former unit owners entitled to distributions of proceeds under section 47-237 or their heirs, successors or assigns. The association shall have an executive board. The association shall be organized as a business or nonstock corporation, trust, partnership or unincorporated association."
Subsections (a) and (b) of General Statutes § 47-278 have remained unchanged since the 1999 amendments became effective on July 1, 2010. Under subsection (a) of § 47-278, " [a] declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws. The court may award reasonable attorneys fees and costs." General Statutes § 47-278(a). Subsection (b) of § 47-278 provides that " [p]arties to a dispute arising under this chapter, the declaration or the bylaws may agree to resolve the dispute by any form of binding or nonbinding alternative dispute resolution, provided: (1) A declarant may agree with the association to do so only after the period of declarant control has expired; and (2) an agreement to submit to any form of binding alternative dispute resolution must be in a record authenticated by the parties." General Statutes § 47-278(b).
In 2011, the legislature added subsections (c) and (d) to General Statutes § 47-278, effective October 11, 2011, to provide for required hearings and requested hearings before an association's executive board. 2011 Public Acts No. 11-195, § 4. General Statutes § 47-278(c)(1) provides: " (A) Except as otherwise provided under subdivision (2) of this subsection, before an association brings an action or institutes a proceeding against a unit owner other than a declarant, the association shall schedule a hearing to be held during a regular or special meeting of the executive board and shall send a written notice by certified mail, return receipt requested, and by regular mail, to the unit owner at least ten business days prior to the date of such hearing. Such notice shall include a statement of the nature of the claim against the unit owner and the date, time and place of the hearing. (B) The unit owner shall have the right to give testimony orally or in writing at the hearing, either personally or through a representative, and the executive board shall consider such testimony in making a decision whether to bring an action or institute a proceeding against such unit owner. (C) The executive board shall make such decision and the association shall send such decision in writing by certified mail, return receipt requested, and by regular mail, to the unit owner, not later than thirty days after the hearing." General Statutes § 47-278(c)(1). Section 47-278(c)(2) provides that " [t]he provisions of subdivision (1) of this subsection shall not apply to an action brought by an association against a unit owner (A) to prevent immediate and irreparable harm, or (B) to foreclose a lien for an assessment attributable to a unit or fines imposed against a unit owner pursuant to section 47-258." General Statutes § 47-278(c)(2).
Subsection (d) of General Statutes § 47-278 provides that " (1) Any unit owner other than a declarant, seeking to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws against the association or another unit owner other than a declarant, may submit a written request to the association for a hearing before the executive board. Such request shall include a statement of the nature of the claim against the association or another unit owner. (2) Not later than thirty days after the association receives such request, the association shall schedule a hearing to be held during a regular or special meeting of the executive board and shall send written notice by certified mail, return receipt requested, and by regular mail, to the unit owner at least ten business days prior to the date of such hearing. Such notice shall include the date, time and place of the hearing. Such hearing shall be held not later than forty-five days after the association receives such request. (3) The executive board shall make a decision on the unit owner's claim and the association shall send such decision in writing by certified mail, return receipt requested, and by regular mail, to the unit owner, not later than thirty days after the hearing. (4) The failure of the association to comply with the provisions of this subsection shall not affect a unit owner's right to bring an action pursuant to subsection (a) of this section." General Statutes § 47-278(d).
The defendants contend that General Statutes § 47-278(d)(1) required the plaintiffs to submit a written request for a hearing to the Board before initiating this action, and that their failure to do so deprives this court of subject matter jurisdiction. For the defendants' exhaustion doctrine to prevail, the court must find that our legislature, in enacting the 2011 amendments to § 47-278, intended to impose a mandatory precondition to a unit owner's filing suit under § 47-278(a). In determining the legislative intent, however, the court cannot consider the text of subdivision (1) of General Statutes § 47-278(d) in a vacuum; General Statutes § 1-2z directs that this subdivision be examined in the context of the other provisions of § 47-278 and the act itself.
As a preliminary matter, the court notes that the legislature used both the terms " shall" and " may" in General Statutes § 47-278. " [W]hen the legislature opts to use the words 'shall' and 'may' in the same statute, they must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). " Shall" is used in the following provisions of General Statutes § 47-278:
[B]efore an association brings an action or institutes a proceeding against a unit owner other than a declarant, the association shall schedule a hearing to be held during a regular or special meeting of the executive board . . . § 47-278(c)(1)(A).
[The association] shall send a written notice by certified mail, return receipt requested, and by regular mail, to the unit owner at least ten business days prior to the date of such hearing. § 47-278(c)(1)(A).
Such notice shall include a statement of the nature of the claim against the unit owner and the date, time and place of the hearing. § 47-278(c)(1)(A).
The unit owner shall have the right to give testimony orally or in writing at the hearing, either personally or through a representative . . . § 47-278(c)(1)(B).
[T]he executive board shall consider such testimony in making a decision whether to bring an action or institute a proceeding against such unit owner. § 47-278(c)(1)(B).
The executive board shall make such decision . . . § 47-278(c)(1)(C).
[T]he association shall send such decision in writing by certified mail, return receipt requested, and by regular mail, to the unit owner, not later than thirty days after the hearing. § 47-278(c)(1)(C).
Such request shall include a statement of the nature of the claim against the association or another unit owner. § 47-278(d)(1).
Not later than thirty days after the association receives such request, the association shall schedule a hearing to be held during a regular or special meeting of the executive board . . . § 47-278(d)(2).
[The association] shall send written notice by certified mail, return receipt requested, and by regular mail, to the unit owner at least ten business days prior to the date of such hearing. 47-278(d)(2).
Such notice shall include the date, time and place of the hearing. § 47-278(d)(2).
Such hearing shall be held not later than forty-five days after the association receives such request. § 47-278(d)(2).
The executive board shall make a decision on the unit owner's claim . . . § 47-278(d)(3).
[T]he association shall send such decision in writing by certified mail, return receipt requested, and by regular mail, to the unit owner, not later than thirty days after the hearing. § 47-278(d)(3).
The failure of the association to comply with the provisions of this subsection shall not affect a unit owner's right to bring an action pursuant to subsection (a) of this section. § 47-278(d)(4).
" May" is used in other provisions of § 47-278:
A declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws. § 47-278(a).
The court may award reasonable attorneys fees and costs. § 47-278(a).
Parties to a dispute arising under this chapter, the declaration or the bylaws may agree to resolve the dispute by any form of binding or nonbinding alternative dispute resolution . . . § 47-278(b).
A declarant may agree with the association to do so only after the period of declarant control has expired. § 47-278(b)(1).
Any unit owner other than a declarant, seeking to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws against the association or another unit owner other than a declarant, may submit a written request to the association for a hearing before the executive board. § 47-278(d)(1).
" [T]erms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . ." (Citation omitted; internal quotation marks omitted.) State v. Miscellaneous Fireworks, 132 Conn.App. 679, 685, 34 A.3d 992 (2011). " [D]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature . . ." (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. at 20. " [T]he use of the word 'shall' . . . generally suggests a mandatory obligation." (Citations omitted.) State v. Reddy, 135 Conn.App. 65, 73, 42 A.3d 406, 411-12 (2012). " The word 'may, ' unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion." (Citations omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996).
Subdivision (1) of subsection (d) of General Statutes § 47-278 provides that a unit owner may submit a written request for a hearing before the executive board of an association; in contrast, subdivisions (2) and (3) provide that the association shall schedule a hearing, the association shall send written notice, the executive board shall make a decision, and the association shall send such decision in writing by certified mail. By using the word " may" in subdivision (1), the legislature distinguished between the right of a unit owner to request a hearing and the obligations of the association and the executive board, set forth in subdivisions (2) and (3), upon receipt of such request. This distinction, which the court presumes to have been deliberate, suggests that the legislature did not intend to require that a unit owner first request a hearing with an association's executive board before commencing an action under General Statutes § 47-278(a). Cf. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. at 20 (" It is especially relevant that the legislature chose to use the word " shall" when referring to service of an apportionment complaint in contrast to the more permissive, " may, " which is used with respect to the right to bring an apportionment claim.").
The court's determination is further informed by the text of General Statutes § 47-278(d)(4), which provides that the association's failure to comply with its obligations under subsection (d) shall not affect a unit owner's right to bring suit pursuant to § 47-278(a). This provision, which is the only reference to a unit owner's right to commence an action under subsection (a) contained in the 2011 amendments to § 47-278, supports rather than circumscribes that right. There is nothing to indicate that the legislature, in enacting subdivision (1) of subsection (d) to § 47-278, intended to impose a precondition to a unit owner's filing suit against an association and its executive board; rather, a fair reading of the statute leads to the conclusion that the legislature intended to create a permissive avenue of redress by allowing an owner to request a hearing before an association's executive board.
Although the defendants argue that the legislative history of General Statutes § 47-278(d)(1) indicates that the legislature intended to impose a mandatory requirement upon unit owners to request such hearings, the court need not consider the legislative history under the circumstances. As set forth in General Statutes § 1-2z, the court may not look to or rely upon the legislative history behind a statute unless the application of the statute yields absurd or unworkable results, or there exists a clear ambiguity in the text of the statute itself. State v. Casiano, 282 Conn. 614, 620 n.12, 922 A.2d 1065 (2007). An ambiguity in the language of a statute exists only where, " when read in context, [the statute] is susceptible to more than one reasonable interpretation." (Citation omitted; internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, supra, 312 Conn. at 527. No such ambiguity exists in the plain language of § 47-278(d)(1), and the permissive nature of the statute does not yield absurd or unworkable results in its application.
V
Accordingly, the defendants' motion to dismiss (#101.00) is denied.
(1) Detailed records of receipts and expenditures affecting the operation and administration of the association and other appropriate accounting records, including, but not limited to, records relating to reserve accounts, if any; (2) Minutes of all meetings of its unit owners and executive board other than executive sessions, a record of all actions taken by the unit owners or executive board without a meeting, and a record of all actions taken by a committee in place of the executive board on behalf of the association; (3) The names of unit owners in a form that permits preparation of a list of the names of all unit owners and the addresses at which the association communicates with the unit owners, in alphabetical order showing the number of votes each unit owner is entitled to cast; (4) The association's original or restated organizational documents, if required by law other than this chapter, bylaws and all amendments to the bylaws, and all rules currently in effect; (5) All financial statements and tax returns of the association for the past three years; (6) A list of the names and addresses of the association's current executive board members and officers; (7) The association's most recent annual report delivered to the Secretary of the State, if any; (8) Financial and other records sufficiently detailed to enable the association to comply with section 47-270; (9) Copies of current contracts to which the association is a party; (10) Records of executive board or committee actions to approve or deny any requests for design or architectural approval from unit owners; and (11) Ballots, proxies and other records related to voting by unit owners for one year after the election, action or vote to which they relate. (b) Subject to subsections (c) and (d) of this section, all records retained by an association shall be available for examination and copying by a unit owner or the owner's authorized agent: (1) During reasonable business hours or at a mutually convenient time and location; and (2) Upon five days' notice in a record reasonably identifying the specific records of the association requested. (c) Records retained by an association shall be withheld from inspection and copying to the extent that they concern: (1) Personnel, salary and medical records relating to specific individuals, unless waived by the persons to whom such records relate; or (2) Information the disclosure of which would violate any law other than this chapter. (d) Records retained by an association may be withheld from inspection and copying to the extent that they concern: (1) Contracts, leases and other commercial transactions to purchase or provide goods or services, currently being negotiated; (2) Existing or potential litigation or mediation, arbitration or administrative proceedings; (3) Existing or potential matters involving federal, state or local administrative or other formal proceedings before a governmental tribunal for enforcement of the declaration, bylaws or rules; (4) Communications with the association's attorney which are otherwise protected by the attorney-client privilege or the attorney work-product doctrine; (5) Records of an executive session of the executive board; or (6) Individual unit files other than those of the requesting owner. (e) An association may charge a reasonable fee for providing copies of any records under this section and for supervising the unit owner's inspection. (f) A right to copy records under this section includes the right to receive copies by photocopying or other means, including copies through an electronic transmission if available upon request by the unit owner. (g) An association is not obligated to compile or synthesize information. (h) Information provided pursuant to this section may not be used for commercial purposes.