Ventres v. Goodspeed Airport, LLC

Full title: JAMES VENTRES ET AL. v. GOODSPEED AIRPORT, LLC ET AL. GOODSPEED AIRPORT…

Court: Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford

Date published: May 27, 2008

2008 Ct. Sup. 8878 (Conn. Super. Ct. 2008)

Opinion

Nos. X07 CV 01 402085 S, X07 CV 01 4025127 S, X07 CV 07 5012545 S

May 27, 2008

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT

MARSHALL K. BERGER, JUDGE.

"The summary judgment procedure is designed to eliminate the delay and expense incident to a trial where there is no real issue to be tried . . . It is an attempt to dispose of cases . . . in a manner which is speedier and less expensive for all concerned than a full-dress trial." (Citations omitted; internal quotation marks omitted.) Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987). In this set of cases, a number of parties seek to terminate this long-standing, multi-front litigation¹ through this summary judgment process.

1 There are six lawsuits:
1) The "enforcement action" is Ventres v. Goodspeed Airport, LLC, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0076812, (May 21, 2004, Sferrazza, J.) (37 Conn. L. Rptr. 197), aff'd, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006) (currently Docket No. X07 CV 01 4025085 in complex litigation at Hartford). It is the counterclaims that are still at issue in this case.
2) The "civil rights action" is Goodspeed Airport, LLC v. Inland Wetlands Watercourses Commission, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 01 4025127.
3) The "DEP action" is Rocque v. Mellon, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080540 (May 21, 2004, Sferrazza, J.) (37 Conn. L. Rptr. 197), rev'd in part, 275 Conn. 161, 881 A.2d 972 (2005) (currently Docket No. X07 CV 02 4025413 in complex litigation at Hartford). See also Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 945 A.2d 464 (2008) (affirming trial court's denial of commissioner's application for attorneys fees, expenses and costs).
4) The "land trust action" is Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012545. At the January 2008 hearing, counsel for the airport indicated that this case was filed specifically to deal with the state causes of action which were not dealt with in the "federal action" enumerated below.
5) The "federal action" is Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., United States District Court, Docket No. 3:01CV403 (SRU), 2005 U.S.Dist.LEXIS 11558 (D.Conn. June 13, 2005), aff'd,
6) 166 Fed.Appx. 506 (2d Cir. 2006). The "declaratory action" is Goodspeed Airport, LLC v. East Haddam Inland Wetlands Commission, United States District Court, Docket No. 3:2006CV00930 (D.Conn.).

A.

First, the court identifies the parties and then recounts an abbreviated history.² East Haddam's inland wetlands and watercourses commission (commission) together with its individual members, Randy Dill, John Gibson, Bryan Goff, Nancy McHone, Wendy Goodfriend and Mary Augustiny (collectively, the commission individuals); its enforcement officer, James Ventres; the former first selectperson of the town of East Haddam, Susan Merrow; the East Haddam Land Trust (land trust) together with its board of directors, Maureen Vanderstad, Ann Kilpatrick, Arthur Merrow, Deborah Piez, Marybeth Durland, Matt Elgart, John Kashanski, Robert R. Smith, Geoffrey N. Wiswell (collectively, the land trust individuals); and the Nature Conservancy (conservancy) will be referred to as the plaintiffs. Goodspeed Airport, LLC (airport), and its sole member, Timothy Mellon, together with Timothy Evans, doing business as Evans Contracting, will be referred to as the defendants.

2 For a detailed history, see Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 197-98 and Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 109-15.

B.

During 2000, the defendants allegedly were engaged in discussions with the land trust concerning the cutting of trees on the land trust's property as part of an agreement in which the airport could cut trees beyond its historic prescriptive easement. In exchange, the defendants allege that the Goodspeed Opera House would be allowed parking rights on the airport property and that the land trust would be given the right to pass over the airport property. Evidently, the agreement was never consummated and, between November 29, 2000 and December 5, 2000, the airport caused Evans, without permission from the commission, the land trust or the conservancy, to clear cut approximately 2.5 acres of land trust property — including approximately 340 trees, some of which were 100 years old and some over seventy feet high — between the airport's southerly border and Chapman Pond. Rocque v. Mellon, 275 Conn. 161, 165, 881 A.2d 972 (2005); Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 111, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).

The defendants allege the following additional facts. On December 19, 2000, the commission held a meeting at which the cutting of the trees was discussed and members of the land trust were permitted to speak. Pursuant to General Statutes § 22a-44(a),³ Ventres issued a cease and desist order against the defendants on January 2, 2001 with a show cause hearing date of January 11, 2001. By agreement, the show cause hearing was continued to February 28, 2001 to allow the defendants time to file a motion to disqualify commissioners that the defendants believed had conflicts of interest and showed bias. As a result of the motion for disqualification filed at the February 28, 2001 hearing, and subsequent recusal by three commissioners, the commission lacked a quorum and the hearing did not proceed. Nevertheless, during its meeting on February 28, 2001, the commission, including those members who had recused themselves, voted to pursue an enforcement action against the defendants.

3 Section 22a-44(a) provides: "If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order, by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order. The issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section. The agency may file a certificate of such order in the office of the town clerk of the town in which the land is located and the town clerk shall record such certificate on the land records of such town. Such certificate shall be released upon compliance with such order. The commissioner may issue orders pursuant to sections 22a-6 to 22a-7, inclusive, concerning an activity, facility or condition (1) which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations or (2) for which an approval is required under sections 22a-36 to 22a-45, inclusive, and for which such approval has not been obtained."

On or around April 11, 2001, Ventres, in his capacity as enforcement officer, and the commission commenced the enforcement action against the defendants, the land trust and the conservancy pursuant to General Statutes § 22a-44(b)⁴ for conducting a regulated activity without a permit. The defendants filed a counterclaim on November 26, 2002 alleging four counts: violation of substantive due process, inverse condemnation, abuse of process and absolute nuisance.

4 Section 22a-44(b) provides: "Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorneys fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. All penalties collected pursuant to this section shall be used solely by the Commissioner of Environmental Protection (1) to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible, (2) to restore other degraded wetlands or watercourses, (3) to inventory or index wetlands and watercourses of the state, or (4) to implement a comprehensive training program for inland wetlands agency members."

On July 23, 2001, the defendants also commenced the civil rights action against Ventres, the commission and the commission individuals alleging six counts: violation of procedural due process under 42 U.S.C. § 1983; retaliatory violation of first amendment rights pursuant to 42 U.S.C. § 1983; violation of General Statutes §§ 22a-44 and 22a-42(c) — declaratory action; violation of §§ 22a-44 and 22a-42(c) — mandamus; violation of article first, § 10 of the Connecticut constitution; and retaliation in violation of article first, §§ 4, 10 and 14 of the Connecticut constitution. The DEP action was filed on December 2, 2002 alleging violations of General Statutes §§ 22a-42a(c)(1)⁵ and 22a-16.⁶

5 Section 22a-42a(c)(1), in relevant part, provides: "On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe . . ."

6 Section 22a-16, in relevant part, provides: "The Attorney General, any political subdivision of the state, any instrumentality or agency of the state . . . may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ."

On motion of the plaintiffs, dated February 9, 2004, in the enforcement action, the court, Sferrazza, J., bifurcated the trial. Consequently, the court heard the DEP action and the enforcement action and cross complaints, but not the counterclaim, and the court entered judgment against the defendants for violating §§ 22a-16, 22a-42a(c)(1) and § 5.1 of the commission's regulations for clear cutting in a regulated area. See Ventres v. Goodspeed Airport, LLC, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0076812 (May 21, 2004, Sferrazza, J.) (37 Conn. L. Rptr. 197). The defendants appealed in the DEP and the enforcement actions and the department of environmental protection (DEP) cross appealed in the DEP action. On August 30, 2005, the Supreme Court upheld the trial court's judgment in the enforcement action; see Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 161; and reversed the portion of the judgment rendered in favor of the defendants in the DEP case. See Rocque v. Mellon, supra, 275 Conn. 169-70.

Meanwhile, on or around March 15, 2001, the defendants filed the federal action in the United States District Court for the District of Connecticut against the land trust, the land trust individuals, Susan Merrow and Ventres seeking damages for civil rights violations.⁷ Judge Underhill orally granted the land trust's motion for summary judgment. The defendants moved for reconsideration and, on June 13, 2005, the court granted the motion for reconsideration and reaffirmed its earlier decision, concluding that "the cease and desist order issued by the [commission] did not invade any protected property interest of [the defendants] because it merely ordered [the defendants] to refrain from engaging in already prohibited activities." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., United States District Court, Docket No. 3:01CV403 (SRU), 2005 U.S.Dist.LEXIS 11558, *2 (D.Conn. June 13, 2005). The court rejected the defendants' arguments that the order restricted their conduct by depriving them of an exception granted by the commission and of their historic right to trim trees and by "chilling" their right to engage in permissible activities. Id., *10-*17. The defendants sought further review of that decision and, on January 27, 2006, the United States Court of Appeals for the Second Circuit affirmed the district court's ruling. Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., 166 Fed.Appx. 506 (2d Cir. 2006).

7 "The district court dismissed the appellants' initial complaint, from which only a declaratory-judgment claim was discernable, for lack of subject matter jurisdiction, but it allowed the appellants to file an amended complaint stating a claim for relief under § 1983, which they did." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 166 Fed.Appx. 507.

On February 9, 2007, the defendants filed the land trust action against the land trust, the land trust individuals, Susan Merrow and Ventres alleging abuse of process, defamation, tortious interference with business relations, malicious prosecution and false light defamation. The plaintiffs filed motions for summary judgment in the civil rights action, the land trust action and the enforcement action on the defendants' counterclaim. The court heard oral argument on these motions on January 28, 2008.

II

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 4-5, 942 A.2d 334 (2008).

III

In the enforcement action, the defendants allege four counterclaims: a violation of substantive due process by Ventres; an inverse condemnation claim pursuant to article first, § 11 of the constitution of Connecticut and the fifth amendment of the United States constitution; abuse of process; and absolute nuisance. In the civil rights action, the defendants allege a violation of procedural due process under 42 U.S.C. § 1983; a retaliatory violation of first amendment rights, also under 42 U.S.C. § 1983; extraordinary relief through a declaratory judgment and mandamus; and violations of article first, §§ 4, 10 and 14 of the Connecticut constitution. In the land trust action, they allege abuse of process; defamation; tortious interference; malicious prosecution and false light defamation. Because some of these claims overlap, they will be grouped together in this court's discussion where possible.

As to the violations of the Connecticut constitution in the civil rights action, Judge Sferrazza granted the plaintiffs' motion for summary judgment, filed December 17, 2003, on these counts on February 3, 2004. The motion was denied as to the other counts. Therefore, the court does not address the parties' arguments on the state constitutional claims again. The court will address, however, the second motion for summary judgment as to the counts on which summary judgment was previously denied as various courts have issued several decisions in the federal action, the enforcement action and the DEP action since February 3, 2004.⁸

8 "A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 249, 926 A.2d 656 (2007).

Generally, these actions arise out of, depending on one's point of view, either the unlawful clear cutting of 2.5 acres in an environmentally sensitive area or the questionable actions of citizens, town officials and commissioners reacting to the cutting. The defendants' claims concern the initial and official responses to the cutting. They allege that Ventres told them that municipal permits, including an inland wetland and watercourse permit, would not be required for the cutting. They maintain that Vanderstad's complaint, on behalf of the land trust, to the resident state trooper concerning the cutting constituted defamation, malicious prosecution, abuse of process, etc. Additionally, they allege that the commission's December 19, 2000 meeting was unlawful because it allowed land trust individuals to participate and failed to give notice to the defendants. Furthermore, they claim that commissioners who were biased and had conflicts of interest acted on both the initial cease and desist order as well as the decision to file the enforcement action thus denying the defendants procedural and substantive due process. Finally, they allege that the cease and desist order deprived them of their property thereby violating both the state and federal constitutions.

The court will first address the substantive and procedural due process claims alleged in the counterclaim to the enforcement action and in the civil rights action. Next, the court will discuss the remainder of the counts in the civil rights action and then the other counts in the counterclaim to the enforcement action. Finally, the court will consider the counts in the land trust action.

A. Due Process Claims I. Substantive Due Process

Turning to the due process claims first, the defendants allege that they were denied substantive due process⁹ by Ventres in their counterclaim to the enforcement action. The plaintiffs argue that summary judgment should be granted as this claim is barred by res judicata or collateral estoppel because the issue was addressed by Judge Underhill in the federal action.

9 "[T]he touchstone of due process is protection of the individual against arbitrary action of government . . . whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective." (Citations omitted.) County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
"For state action to be taken in violation of the requirements of substantive due process, the denial must have occurred under circumstances warranting the labels `arbitrary' and `outrageous.' . . . Arbitrary conduct that might violate zoning regulations as a matter of state law is not sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of governmental authority that will offend the substantive component of the Due Process Clause." (Citations omitted.) Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999); see also County of Sacramento v. Lewis, supra, 523 U.S. 846 ("only the most egregious official conduct can be said to be arbitrary in the constitutional sense" [internal quotation marks omitted]).

"Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment may be appropriate." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 461, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." (Internal quotation marks omitted.) Bagoly v. Riccio, 102 Conn.App. 792, 800, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245 (2007). "Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved . . . The subtle difference between claim preclusion and issue preclusion has been so described: [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made." (Citations omitted; emphasis in original; internal quotation marks omitted.) LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 589-90, 898 A.2d 803 (2006).

"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . More specifically, collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600-01, 922 A.2d 1073 (2007). "[A] judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 102 Conn.App. 305, 311, 925 A.2d 432, cert. denied, 284 Conn. 906, 931 A.2d 261 (2007).

In the present case, the district court addressed the issue of due process in the federal action to which Ventres was a party. Specifically, in Judge Underhill's decision granting the motion for reconsideration¹⁰ but denying the relief requested, the court recognized that "[t]o establish violations of either procedural or substantive due process a plaintiff must first identify a constitutionally protected right that has been violated." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *6. "Goodspeed identifies its right to use its property for lawful purposes as the property interest allegedly infringed by the defendants. Admittedly, the right to use property for lawful purposes is one of the most fundamental rights protected by our Constitution, but there is no right to unlawfully use one's property. Here, all the cease and desist order did was prohibit Goodspeed from engaging in `regulated activity,' i.e., activity already prohibited by statute or regulations — neither of which Goodspeed challenges. In other words, the cease and desist order, by its own terms, only prohibited Goodspeed from engaging in unlawful uses of its property." Id., *6-*7. In concluding that the granting of the motion for summary judgment was correct, the court found that "Goodspeed points to no evidence from which reasonable jurors could find that the cease and desist order issued by the [commission] either directly or indirectly restrained Goodspeed from any lawful use of its property." Id., *18.

10 The court reconsidered the granting of the motion for summary judgment admitting that it had not considered the impact of the cease and desist order on lawful conduct. Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *2. The issue was "whether there is any evidence from which reasonable jurors could find that the cease and desist order issued against Goodspeed prevented Goodspeed from engaging in any lawful conduct." (Emphasis omitted.) Id., *10. The court reviewed and rejected all three of the defendants' claims: (1) that the order deprived the defendants of an exception to the regulations that had been granted to it by the commission; (2) that the order deprived the defendants of its historic right to trim trees; and (3) that it increased the penalties the defendants faced for conducting regulated activity, thereby "chilling" the defendants' performance of permissible activities. Id., *10-*17. The court concluded that there was "no evidence from which reasonable jurors could find that the cease and desist order issued by the [commission] either directly or indirectly restrained Goodspeed from any lawful use of its property" and thus did not change its prior decision granting the motion for summary judgment. Id., *18. As noted, that decision was affirmed on appeal. See Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 166 Fed.Appx. 508.

The Second Circuit affirmed the trial court's decision. "Because the appellants point to no property right of which the government deprived them, the district court did not err in granting summary judgment on the § 1983 claims." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 166 Fed.Appx. 508.

Because Judge Underhill found that no constitutionally protected right had been violated, because the granting of the summary judgment is a final judgment on the merits and because the trial court's decision was affirmed, the defendants are barred from continuing to assert the same claim. Therefore, the plaintiffs' motion for summary judgment is granted as to the count alleging violation of substantive due process in their counterclaim to the enforcement action.

2. Procedural Due Process

Additionally, the defendants allege they were denied procedural due process by the commission, the commission individuals and Ventres in the civil rights action. The plaintiffs argue that these claims are also barred based upon Judge Underhill's decision in the federal action as they were based upon the same operative facts and could have been made by the defendants in that action. The defendants assert, however, that there is no privity between the commission, the commission individuals and Ventres and the parties in the federal action, i.e., the land trust, the land trust individuals, Ventres and Susan Merrow.

"A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made." Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952). "While the concept of privity is difficult to define precisely, it has been held that a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity . . . In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion." (Citation omitted; internal quotation marks omitted.) Mount Vernon Fire Ins. Co. v. Morris, 90 Conn.App. 525, 536, 877 A.2d 910 (2005), appeal dismissed, 281 Conn. 544, 917 A.2d 538 (2007).

While it is true that the defendants sued the land trust, Ventres and Susan Merrow, as town representatives, in the federal action and that they did not sue the commission or the commission individuals, the defendants' allegations in the federal action allege the same facts and transactions as those alleged in the state actions. Indeed, some paragraphs in the different actions are exactly the same, e.g., paragraphs 57 and 58 in the federal action and paragraphs 45 and 46 in the land trust action. In the federal action, the defendants alleged due process violations by Ventres.

As previously discussed, Judge Underhill rejected the due process claims both initially and after reconsideration and the court's decision was affirmed by the Second Circuit Court of Appeals. Ventres, in his capacity as the wetlands agent or enforcement officer, is a party to the federal action, the enforcement action and the civil rights action. As an agent of the commission, he is also in privity with the commission and the commission individuals. See Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 561, 436 A.2d 24(1980) ("the agents of the same municipal corporation are in privity with each other and with the municipality"). Consequently, the federal court's decision is binding on and applies to the commission and the commission individuals for those same claims arising out of that same factual background. The fact that the commission and the commissioners were not named in the federal action does not preclude the court's application of the doctrine of res judicata inasmuch as Ventres, as the enforcement officer, the commission and the commission individuals were hound to carry out the mandates of the town as they pertain to inland wetlands and watercourses matters. See id. Therefore, the federal court's judgment concerning the due process claims is conclusive and bars the similar claims in the counterclaim in the enforcement action and in the civil rights suit.

Even if the procedural due process claim was not barred by the decisions of the district court in the federal action or the decisions of the trial court or the Supreme Court in the enforcement action, the defendants' claims, as noted at the January 28, 2008 hearing, essentially boil down to four allegations. First, the commissioners who had conflicts of interest and were biased acted on the defendants' matters. Second, the commission failed to provide notice and a fair hearing before issuing the cease and desist order. Third, the commission failed to take official action on the cease and desist order at the February meeting. Fourth, the commission unlawfully instituted the enforcement process.

The following, and essentially undisputed, facts are relevant. At the January 11, 2001 meeting, the defendants' counsel raised the issue of commissioner conflicts as three commissioners were also members, although not officers or directors, of the land trust. The defendants' counsel also moved to disqualify another commissioner for bias due to a comment made at the December meeting about the clear cutting.¹¹ At the February hearing, three commissioners¹² recused themselves leaving the commission without a quorum and it failed to act further on the cease and desist order. Nevertheless, shortly thereafter, the commission closed the hearing and held their meeting at which the commissioners, including those who had recused themselves, voted to take enforcement action against the defendants.

11 According to the defendants' counterclaim in the enforcement action, Commissioner Gibson said, "Tora, Tora, Tora." The defendants allege that this was "apparently equating the cutting of trees on the Southern property with the perfidious sneak attack on Pearl Harbor."

12 One of the three commissioners who was a member of the land trust was not present at the meeting. Therefore, Commissioner Gibson and two of the commissioners who were also members of the land trust recused themselves.

For the purposes of this discussion, this court will assume that once the three recused themselves — and whether they were required to initially is certainly a different matter¹³ — they should not have participated in the subsequent enforcement vote. But, having done so, what is the legal impact?

13 See Brooks v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 98 0086661 (February 1, 2000, Quinn, J.); see also Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 100-01, 596 A.2d 374 (1991); Holt-Lock, Inc. v. Planning Zoning Commission, 161 Conn. 182, 286 A.2d 299 (1971); Woodburn v. Conservation Commission, 37 Conn.App. 166, 175-76, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).

As to the procedural due process claim that the defendants failed to receive notice of the December meeting, the defendants' argument assumes that the December meeting constituted a public hearing requiring notice. That is simply not the case. The legislature has distinguished those situations in the land use arena in which public hearings are required. See, e.g., General Statutes § 22a-42a(b); General Statutes § 22a-42a(c)(1); and General Statutes § 8-3c(b); see also Belanger v. Planning Zoning Commission, 64 Conn.App. 184, 188, 779 A.2d 833 (2001) ("[t]he commission, pursuant to General Statutes § 8-26, is not required to hold a public hearing in every case regarding a subdivision proposal presented to it" [internal quotation marks omitted]).

Section 22a-44(a) provides that " [w]ithin ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order." (Emphasis added.) The inland wetland or watercourses statutes do not require a public hearing to discuss a complaint, but a hearing with notice is required within ten days of issuance of the cease and desist, but not before. Thus, the defendants were simply not entitled to a public hearing to discuss the complaints prior to the issuance of the cease and desist order.

Additionally, the defendants argue that the December meeting was in fact a public hearing because members of the land trust spoke about the matter. The defendants have the burden to prove that the meeting was actually a public hearing in order to show that notice was required. See Grimes v. Conservation Commission, 243 Conn. 266, 278, 703 A.2d 101 (1997) ("[b]ecause the burden is on the plaintiff to show that the commission acted improperly . . . she must prove that the meeting was, in fact, a hearing in order to avail herself of the more stringent notice requirements of § 22a-42a" [citation omitted]). "An administrative agency can be the investigator and adjudicator of the same matter without violating due process." (Internal quotation marks omitted.) Id., 276. "Investigative procedures . . . are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it." Id., 278.

In the present case, Vanderstad was asked by the commission during the meeting to comment about the status of the negotiations between the defendants and the land trust and stated that there was no final agreement between the parties about cutting the trees. The commission was well within its investigative authority to question Vanderstad. Additionally, the defendants have not proven that the meeting was, in fact, a hearing entitling them to notice simply by alleging that one member of the land trust was allowed to speak at the meeting. Furthermore, "[a] planning commission proceeding without a public hearing has a wide latitude in the mode permitted to parties in presenting their views before it, and may use any procedure which is reasonable in attaining the end in view." (Internal quotation marks omitted.) Daviau v. Planning Commission, 174 Conn. 354, 357, 387 A.2d 562 (1978).

Finally and notably, a cease and desist order can be issued by the inland wetlands agent in the first instance even without commission involvement. Indeed, § 22a-44(a), in relevant part, provides, "If the . . . duly authorized agent finds that any person is conducting or maintaining any activity . . . which is in violation of sections 22a-36 to 22a-45, inclusive . . . the duly authorized agent may issue a written order . . . to such person conducting such activity . . . to cease immediately such activity . . ." (Emphasis added.)

It is clear that the commission attempted to comply with the hearing requirement of § 22a-44(a). The January 11, 2001 hearing was scheduled and convened but rescheduled at the request of the defendants' counsel. The February 28, 2001 hearing did not occur after the commissioners' recusals, but the commission gave the defendants the opportunity to contest the order — albeit in front of the commission including the commissioners that they sought to disqualify. While it appears that any attempt to assemble a quorum would have been futile as there were not enough alternates, although there is no evidence one way or the other, the defendants chose not to go forward with the hearing.

Our Appellate Court has held, however, that the requirement for a hearing is directory and not mandatory. "There is nothing in the language of General Statutes § 22a-44(a) that suggests that, if the agency does not hold a hearing within ten days of the issuance of the order, all of its actions taken thereafter will be void. We note also that the agency may issue a cease and desist order whenever it finds a violation of the Inland Wetlands and Watercourses Act or of the regulations. Since the act allows the agency the discretion to issue cease and desist orders whenever it finds such a violation, the agency could immediately reassert its jurisdiction by issuing a cease and desist order after ten days. Thus, it makes little sense to conclude that the legislature intended the ten day period to be mandatory. Viewed in its proper context, the provision is designed not to set an inflexible time limit, but to secure a prompt and systematic dispatch of the proceedings relating to the cease and desist order." Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 448-49, 558 A.2d 1021, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989).

This court is mindful that § 22a-44(a), in part, provides that "[t]he original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order." (Emphasis added.) Judge Sferrazza noted the same and held that "the original cease and desist order issued by Ventres in January 2001 remains in effect because that order was never acted upon by the Commission." Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 205.

Nevertheless, the cease and desist order has lost its significance and viability. First, as the district court pointed out in the federal action, "the prohibitions of the cease and desist are no broader than the prohibitions set forth in Connecticut statutes and municipality's regulations concerning use of protected wetlands." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *4 Therefore, the defendants were not nor are they now prevented from doing anything that they were not already prohibited from doing.

Second, § 22a-44(a) recognizes that § 22a-44(b) provides for alternative judicial injunctive action. General Statutes § 22a-44(a) ("[t]he issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section"). Section 22a-44(b), in relevant part, provides, "[t]he Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section." In Conservation Commission v. Price, 193 Conn. 414, 421, 479 A.2d 187 (1984), the court noted that "[t]his statute provided the plaintiff with an alternative statutory remedy to that contained in § 22a-44(a) of the act and quite clearly the trial court's finding relating to the plaintiff's failure to comply with § 22a-44(a) in no way affects the viability of the plaintiff's action which was instituted under General Statutes §§ 22a-36 through 22a-45." Thus, with or without the hearing on the cease and desist order, the importance and significance of the order ended with the commencement of the judicial injunctive action.

The last procedural due process question concerns the legality of the commission's vote to seek injunctive relief after the three members had recused themselves. As noted above, the claim presumes that a constitutionally protected right has been violated and, notwithstanding the defendants' claim that they acted within their rights pursuant to the prescriptive easement, this notion was impliedly rejected by both Judge Sferrazza and our Supreme Court who found violations of the inland wetlands and watercourses act due to the defendant's clear cutting the land trust's property.

In addition, it must be noted that the action was commenced by Ventres, not the commission, and § 22a-44(b) allows "any person" to commence an enforcement action. As indicated at the hearing before this court, it would not have been inappropriate to utilize alternates or other members for this vote. Nevertheless, as the action did not necessarily require the commission's approval, as the action was clearly warranted and as the defendants have failed to prove that their due process rights were violated, the commission's vote does not provide the basis for the due process claim. "[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 97, 596 A.2d 374 (1991). Consequently, while this court does not condone the commission's actions, particularly the vote after the commissioners recused themselves, it cannot find a violation of procedural due process.

B. Remaining Counts of the Civil Rights Action I. Retaliatory Violation of the First Amendment

In the civil rights action, the defendants also assert a cause of action alleging a retaliatory violation of first amendment rights pursuant to 42 U.S.C. § 1983. Specifically, they allege that the filing of their motion to disqualify the commissioners was protected conduct under the first amendment and that the commission's initiation of the enforcement action was retaliation for the motion. "In order to prove a claim for retaliation, a plaintiff must establish the following elements: (1) that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights." Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); see also Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225 (2d Cir. 2006) ("[i]n the context of a First Amendment retaliation claim, we have held that [o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action" [internal quotation marks omitted]), cert. denied, 127 S.Ct. 2062, 167 L.Ed.2d 769 (2007).

As to the second prong, this issue was addressed by Judge Underhill in the federal action.¹⁴ "Goodspeed has not identified or provided evidence of any instances where it was chilled from undertaking lawful conduct that it would have undertaken if only the state law and local regulations, but not the cease and desist order, were in place. The only statement by Goodspeed that gives any indication of what lawful activity it may have refrained from undertaking is a statement in its brief where Goodspeed claims that it `can do nothing on its property without first obtaining a permit' because of its fear of the increased penalties of the cease and desist order. That statement, however, is not only unsupported by any evidence in the record but appears highly improbable given that the Goodspeed Airport is still in business. Accordingly, there is no evidence from which reasonable jurors could conclude that the additional penalties imposed by the cease and desist order prevented Goodspeed from undertaking any lawful conduct." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *16-*17. As noted above, "claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made." (Emphasis in original.) LaSalla v. Doctor's Associates, Inc., supra, 278 Conn. 590.

14 The claim in the federal action was somewhat different from that in this civil rights matter. In the federal action, the defendants argued "that the cease and desist order, even if it only prohibits activity that is already unlawful, nevertheless violates Goodspeed's rights because the increased penalties associated with violating a cease and desist order, as opposed to only violating a statute or regulation, have a `chilling effect.'" Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, * 14-*15. This is a distinction without a difference-the "chilling effect" of an enforcement action and of increased penalties for violating the cease and desist order are essentially the same.

Additionally, the defendants do not allege actionable retaliation by the commission because they have not alleged or provided evidence of a "causal connection" sufficient to show that their motion to disqualify was a motivating factor in the commission's actions. See Velez v. Levy, 401 F.3d 75, 99 (2d Cir. 2005) (affirming trial court's granting of motion to dismiss because plaintiff's complaint did not allege actionable retaliation as she did not plead "causal connection" sufficient to show that her speech "was a motivating factor" in alleged retaliatory action). "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). In this case the defect could not be cured by repleading because, as evidenced by the decisions of the trial court and Supreme Court, the commission was justified in initiating the enforcement action. See Diesel v. Town of Lewisboro, 232 F.3d 92, 109 (2d Cir. 2000) ("[c]onduct that is properly initiated, reasonably executed, independently justified and equally administered — regardless of any animosity towards the plaintiff — does not give rise to a constitutional claim for retaliatory harassment"). Therefore, the motion for summary judgment as to this count is granted.

2. Action for Declaratory Judgment and Writ of Mandamus

In the third and fourth counts of the civil rights action, the defendants seek both a declaratory judgment and, alternatively, a writ of mandamus to compel the commission to withdraw the cease and desist order because they argue that no activity was ongoing as required by § 22a-44; because commissioners had conflicts of interest in violation of § 22a-42(c); because the commission did not authorize Ventres to issue a cease and desist order against Evans; and because the commission failed to have a hearing and to issue a decision affirming, revising or withdrawing the order as required by §§ 22a-44 and 22a-42(c). Many of these allegations are duplicative of the defendants' due process complaints and were asserted as part of their fourth special defense to the enforcement action.¹⁵ Hence, no matter how labeled, the issues were in some form before Judge Sferrazza and our Supreme Court.¹⁶

15 Judge Sferrazza declined, however, to address the fourth special defense of failure to mitigate damages "[b]ecause the court has not assessed penalties after the date the cease and desist order issued." Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 206.

16 At the trial level, Judge Sferrazza ruled that the cease and desist order was still in effect. In affirming that decision, the Supreme Court stated, "Because several commission members had recused themselves from the matter, however-apparently because the airport defendants had alleged a conflict of interest-no quorum was available on the date of the hearing. At a June 11, 2001 commission meeting on a related matter, counsel for the airport defendants withdrew the conflict of interest claim as to two of the three commission members who had recused themselves. The cease and desist hearing was never rescheduled, however, and the plaintiffs never issued any order to the airport defendants to correct the condition of the land trust defendants' land. See General Statutes § 22a-44(a) (inland wetlands agency is authorized to issue order to correct condition created by violation of act)." Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 151. Thus, these issues were considered in the prior proceedings.

Additionally, "the prohibitions of the cease and desist are no broader than the prohibitions set forth in Connecticut statutes and municipality's regulations concerning use of protected wetlands." Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *4. Therefore, even if the commission withdrew the cease and desist order, the defendants would gain nothing. They would still be subject to our statutes and East Haddam's inland wetlands regulations that require the defendants to obtain a permit from the commission before performing any regulated activity within seventy-five feet of the regulated areas. (See Plaintiff's Exhibit 1 from 2004 trial of enforcement action, Regulations Town of East Haddam Inland/Wetlands and Watercourses Commission, last revised June 1, 1995, § 5.5.)

Furthermore, the cease and desist order, for all practical purposes, is moot. "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief . . . Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002).

In the present case, although the administrative cease and desist order process of § 22a-44(a) is separate from the judicial enforcement process of § 22a-44(b), the significance of the order ceased when the enforcement action was concluded.¹⁷ Judge Sferrazza enjoined the defendants "from engaging in any regulated activity on the land south of the tidal brook without obtaining a permit or approval from the Commission beforehand" and "from entering the . . . [land trust's] land, without the owner's consent, except as is consistent with the prescriptive easement usage which the court has found to exist." Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 206. For all practical purposes then,¹⁸ the cease and desist order was subsumed by the court-ordered injunctive relief. See Ruotolo v. Inland Wetlands Agency, supra, 18 Conn.App. 449 ("[v]iewed in its proper context, the provision [§ 22a-44(a)] is designed . . . to secure a prompt and systematic dispatch of the proceedings relating to the cease and desist order"). Here, the proceedings related to the cease and desist order were in fact systematically dispatched through the alternative but superior judicial enforcement action. Thus, the order has no legal impact on the defendants and is moot.

17 For example, if the cease and desist order conflicted with the ruling of the Superior Court, the decision of the court would clearly take precedence. See General Statutes § 22a-43(a) ("[t]he appeal . . . shall not stay proceeding on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order . . ."); see also General Statutes § 8-8(h).

18 In the transcript of the commission's December meeting, in response to the question as to what the defendants would "be ceasing and desisting from," Ventres responded, "The problem is because the only mechanism available to us under the Regulations is to order a Cease and Desist . . . even though it is already accomplished, the work was done. That starts the ball rolling for any remediation."

C. Remaining Counts of Counterclaim in Enforcement Action 1. Inverse Condemnation

In the counterclaim to the enforcement action, the defendants allege that the cease and desist order and subsequent enforcement action prohibiting all cutting of trees "will result in the growth of trees on the Southern Property and on the Airport Property to such heights as to effectively prohibit the use of the single runway at the Airport." Consequently, "the relief sought by the Plaintiffs herein will effectively extinguish the Airport's existing prescriptive easement to cut trees on the Southern Property to maintain airport safety." According to the defendants, this allegedly "will result in the Airport's loss of license" thereby "nullify[ing] the value of the Airport Property and . . . substantially abridg[ing] or destroy[ing] the Airport's right to use or enjoy the Airport Property." Therefore, the defendants allege this constitutes a taking of its property in violation of article first, § 11 of the Connecticut constitution and of the fifth amendment to the United States constitution.

"Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency . . . An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding . . . Accordingly, an inverse condemnation action has been aptly described as an eminent domain proceeding initiated by the property owner rather than the condemnor . . . The word taken in article first, § 11 of our state constitution means the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain . . . Although property may be taken without any actual appropriation or physical intrusion . . . there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed . . . A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed." (Citation omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83-84, 931 A.2d 237 (2007).

As noted above, Judge Underhill in the federal action found that the cease and desist order deprived the defendants of nothing. Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *5-*6 ("At oral argument on Goodspeed's summary judgment motion, I held that there was no deprivation of property because the cease and desist order only prohibited Goodspeed from engaging in activities that were already forbidden. In other words, the cease and desist order did not deprive Goodspeed of any lawful use of its property"). "In an inverse condemnation action, the court is required to determine, first, whether the regulatory action gives rise to an unconstitutional taking." Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 77 n. 32, 808 A.2d 1107 (2002). Because there has been no taking, the defendants' inverse condemnation claim must fail.

Additionally, the defendants have presented no evidence that the value of the property was nullified or that the right to use or enjoy the property was substantially abridged or destroyed.¹⁹ See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008) ("Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." [Internal quotation marks omitted.]). Mellon's affidavit references the need to cut some trees to maintain airport safety, but without any specificity. Indeed, it is purely speculative that the defendants may lose their license to operate the airport at some unspecified future date. "Until it appears that the plaintiff has been finally deprived by the commission of the reasonable and proper use of the property, it cannot be said that there has been an unconstitutional taking of property without just compensation." (Internal quotation marks omitted.) Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 695, 433 A.2d 999 (1980). "[S]ome impairment of access rights and some diminution in the total value of property do not, without more, justify a conclusion that there has been an unconstitutional taking." Luf v. Southbury, 188 Conn. 336, 354, 449 A.2d 1001 (1982). "Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property." Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 85. As Judge Underhill noted in the federal action the defendants are still in business. See Goodspeed Airport, LLC v. East Haddam Land Trust, Inc., supra, 2005 U.S.Dist.LEXIS 11558, *17. As a result, the plaintiffs' motion for summary judgment as to the takings claim must be granted.

19 To say nothing of the fact that, since the land trust's acreage is clear cut, "growth of trees on the Southern Property . . . to such heights as to effectively prohibit the use of the single runway at the Airport" seems highly unlikely or may, at least, take many years to occur.

2. Abuse of Process CT Page 8896

In the counterclaim to the enforcement action and in the land trust action, the defendants allege that Ventres and the commission has abused process by "approving, issuing and enforcing the Cease and Desist order against the Airport Defendants for illegitimate and improper purposes." "An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . Comment b to § 682 explains that the addition of [the word] primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 77, 918 A.2d 889 (2007), aff'd, 286 Conn. 548, 944 A.2d 329 (2008).

In the present case, the commission clearly issued the cease and desist order to accomplish a purpose for which it was designed, i.e., to prohibit the defendants from engaging in a regulated activity in a regulated area without a permit. Indeed, using the enforcement provisions of the inland wetland and watercourses act, which include the issuance of an order, is a recognized proper step to take in seeking to stop a party from violating the act. See General Statutes § 22a-44; see also Burgio v. Bruno's Custom Kitchen Bath, LLC, Superior Court, judicial district of Litchfield, Docket No. CV 03 0091421 (October 25, 2004, Trombley, J.) (finding that institution of civil action proper to seek monetary damages for work done by contractor in allegedly improper manner). Additionally, in affirming the trial court's finding that the defendants violated both §§ 22a-42(c)(1) and 22a-16 and in upholding the monetary penalties, our Supreme Court implicitly found that the enforcement provisions of the inland wetland and watercourses act were utilized for their intended purpose. Based upon this affirmance of the finding that the defendants clear cut the land trust's property without permission or right, beyond the scope of their easement, in violation of our statutes, it is inconceivable to this court that the defendants continue to pursue their abuse of process claim. Whatever the incidental motive or ulterior purpose the defendant believes lies behind the cease and desist order, it was simply not used against the defendants to accomplish a purpose for which it is not designed.

"It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . . . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised . . . Nevertheless, it remains incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists." (Citation omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 497-98, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). "To allege a viable cause of action for abuse of process, a claimant must point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 601-02, 715 A.2d 807 (1998). "The viability of an abuse of process claim turns on the specificity of its allegations." Jackson v. R.G. Whipple, Inc., Superior Court, judicial district of New London, Docket No. CV 0507768 (Leuba, J., February 9, 1994). In this case, the defendants have not specified a factual predicate for their allegations that the cease and desist order was used in an improper manner or to accomplish a purpose for which it was not designed. Therefore, the plaintiffs' motion for summary judgment as to abuse of process is granted.²⁰

20 Moreover, it is noted that the defendants are arguably barred by the federal action from pursuing tort claims against, at least, Ventres and Susan Merrow. In Virgo v. Lyons, 209 Conn. 497, 498-500, 551 A.2d 1243 (1988), the court considered a state action brought after a federal action. The court found, "The elements of collateral estoppel are satisfied in the present case. Although the current state court action involves claims in negligence and assault and battery, while the federal court action ultimately involved only a claim for violations of the plaintiff's constitutional rights under § 1983, both causes of action arose out of the same alleged wrongs, allegedly committed by the same defendants, and involved the same injuries. Moreover, the interests protected in a § 1983 action are similar to those protected in common law tort actions." Id., 502. "Because § 1983 provides a remedy in the form of damages for actual injuries suffered by reason of a violation of a plaintiff's civil rights, it follows that the issue of damages for those same injuries cannot be relitigated in a state tort action if it has already been decided in a § 1983 action." (Emphasis omitted.) Id., 503.
Similarly, in the present case, the elements of collateral estoppel are satisfied. Abuse of process is a tort claim. While the federal claim ultimately involved only a claim for violations of the defendants' constitutional rights under 42 U.S.C. § 1983, both cases arose out of the same alleged wrongs, allegedly committed by Ventres, among others, and involved the same injuries. Because the interests protected in the federal action are similar to those protected here and because 42 U.S.C. § 1983 provides a remedy in the form of damages for actual injuries suffered due to a violation of the defendants' civil rights, the issue of damages for those same injuries should not be relitigated here because the issue was already decided in the federal action. See id. The same is true as to the private nuisance claim.

3. Absolute Nuisance ²¹

21 This claim that the commission's enforcement of its regulations has somehow interfered with the airport's navigation rights seems to be yet another bite at the defendants' preemption claim that our Supreme Court rejected. See Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 132 ("We cannot perceive why, if federal law would confer no right to enter the land trust defendants' properties in the absence of a property right to do so, federal law would trump all residual private property rights of the landowner and state as well as state and local land use laws where the airport defendants established only a limited property right. If the airport defendants had no cause of action against the land trust defendants to require them to clear-cut the land under federal law . . . they had no right under federal law to conduct such an activity themselves." [Citation omitted; emphasis omitted.]). Indeed, many of the defendants' claims are derivative of one another and simply repackage and rename allegations made in one of the other cases.

The defendants' fourth counterclaim in the enforcement action is that the cease and desist order and the relief requested in the enforcement action constitute an absolute nuisance because they are intended to permit the growth of trees on the defendants' and land trust's property creating an obstruction to air navigation.²² The parties agree that the defendants must show that the condition alleged to be a nuisance was created by some positive act of the municipality. The plaintiffs argue that there is no positive act by the town, the commission or otherwise while the defendants argue that the positive act is the issuance of the cease and desist order.

22 The defendants alleged the same cause of action against the land trust and the conservancy in its cross claims in the enforcement action. Judge Sferrazza declined to address this claim in his memorandum of decision. "It would serve no useful purpose to go beyond stating that these cross claims are devoid of factual support and legal merit." Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 205.

The elements of a nuisance, whether it be private or public, are: (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) if it is a public nuisance, the condition or conduct complained of interferes with a right common to the general public, or, if it is a private nuisance, the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages. See Keeney v. Old Saybrook, 237 Conn. 135, 162-63, 676 A.2d 795 (1996); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978).

As stated above, the cease and desist order does not prevent the defendants from doing anything that it already could not do without seeking permission from the commission. Consequently, the cease and desist order is not a condition that has a natural tendency to create danger and inflict injury upon person or property. See Maykut v. Plasko, 170 Conn. 310, 317, 365 A.2d 1114 (1976) ("[a]ccording to the weight of authority . . . while what is authorized by law cannot be a public nuisance, it may nevertheless be a private nuisance, and the legislative authorization does not affect any claim of a private citizen for damages . . . or for an injunction" [emphasis added; internal quotation marks omitted]). Furthermore, even if the cease and desist order was a danger, it is not continuing. First, the cease and desist order, as explained above, was subsumed in the injunctive relief prescribed by the trial court. Second, all the trees that presumably pose the risk here have already been cut down.²³ Finally, the cease and desist order does not make the use of the land unreasonable or unlawful; the order simply requires the defendants to obey the town's inland wetlands and watercourses regulations. Thus, the defendants cannot establish the elements of nuisance based upon the cease and desist order.

23 If there are additional trees to be cut, nothing prevents the defendants from obtaining a determination from the commission as to whether cutting such trees constitutes a regulated activity or prohibits them from applying to the commission for a permit to cut and/or trim trees.

Moreover, "[c]laims of nuisance fall into two discrete categories: (1) absolute nuisance and (2) negligent nuisance. The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional. Intentional, in this context, means not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance." (Citation omitted; internal quotation marks omitted.) Green v. Ensign-Bickford Co., 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). The plaintiff in Green sought to recover damages as a result of an explosion at the defendant's research facility; the Appellate Court affirmed the trial court's granting of the defendant's motion for directed verdict on the absolute nuisance count because the plaintiff failed to prove that the defendant intended the tragic result. Id., 490-91.

In the present case, there is a similar gap in the defendants' allegations and their evidence concerning absolute nuisance. It strains credulity to think that the commission intended to create an obstruction to air navigation at the airport by issuing a cease and desist order and filing the enforcement action. More importantly, the defendants present no evidence to support these allegations. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. Therefore, for the above reasons, the plaintiffs' motion for summary judgment as to this claim is granted.

D. Land Trust Action 1. Abuse of Process/Malicious Prosecution

The defendants allege abuse of process and malicious prosecution by the land trust and its members in that they "used the criminal processes of the State of Connecticut against the plaintiffs in an improper manner." "The action of malicious prosecution lies where a civil or criminal action has been instituted with malice and without probable cause, and has terminated unsuccessfully. The plaintiff must allege and prove that the original action, whether civil or criminal, was instituted without probable cause, with malice, and that it terminated in his favor. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose . . . The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceeding, not in the issue of process but in its abuse . . . An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . Comment b to § 682 explains that the addition of `primarily' is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn.App. 600-01.

In the present case, the land trust filed the criminal complaint because its land had been entered and its trees had been cut without its permission. Vanderstad, for the land trust, filed the complaint for its intended purpose, i.e., to protect its property. Additionally, in Vanderstad's affidavit, she attests that in addition to reporting the trespass and conversion she also told the trooper that the land trust had been negotiating with Mellon to allow some cutting on the property and that the parties had not come to an agreement. She also stated that she gave the trooper a copy of the affidavit that Mellow filed on the land records regarding the defendants' claim that the airport had a prescriptive easement on the land trust's property. In response, the defendants have produced no evidence and established no factual predicate, from which it can be determined that a genuine issue of material fact exists that Vanderstad, or any other member of the land trust, used the criminal claim against the defendants for an improper purpose. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11; Miller v. Bourgoin, supra, 28 Conn.App. 498; Jackson v. R.G. Whipple, Inc., supra, Superior Court, Docket No. CV 0507768. "A party does not abuse legal process merely by filing a lawsuit." Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn.App. 601. Similarly, this court cannot find that Vanderstad abused process merely by filing a criminal complaint with the resident state trooper. Therefore, the plaintiffs' motion for summary judgment as to abuse of process is granted.

As mentioned above, a claim of malicious prosecution is closely related to abuse of process. "An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." (Emphasis omitted; internal quotation marks omitted.) Lopes v. Farmer, 286 Conn. 384, 389-90, 944 A.2d 921 (2008).

The defendants assert that Vanderstad made a false criminal complaint that the defendants had "engaged in criminal conduct including criminal trespass, criminal mischief and larceny." They argue that, since there was never a criminal prosecution, the criminal proceeding terminated in their favor. As to malice, they maintain that the land trust used this process "to gain advantage in its dispute with the plaintiffs and to coerce and extort monies . . . and to retaliate against the plaintiffs for refusing to accede to the [land trust's] monetary demands."

As to the first prong, "[t]he policy of encouraging private citizens to assist in law enforcement is vindicated, in the law of malicious prosecution, by providing a limited immunity in the form of the first element that the plaintiff must prove to maintain his cause of action. A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer's decision to commence the prosecution . . . But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution." (Citations omitted; emphasis added.) McHale v. W.B.S. Corp., 187 Conn. 444, 448, 446 A.2d 815 (1982); see also Moriarty v. Lippe, 162 Conn. 371, 387 n. 2, 294 A.2d 326 (1972) ("all citizens have a conditional privilege to communicate to police officials respecting the perpetration of an alleged criminal act").

As stated above, Vanderstad attests that she fully and accurately described the state of the relationship between the land trust and the defendants to the resident state trooper. She asserts, and the defendants provide no evidence to the contrary, that she did no more than provide potentially incriminating information to the resident state trooper. According to her affidavit, once she provided the information she had no further contact with the officer. There is no evidence that she pressed for criminal prosecution.

Additionally, the defendants cannot prove the third prong, i.e., that the land trust acted without probable cause. "[T]he existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). "Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable." (Citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 739, 643 A.2d 1226 (1994); see also Heussner v. Day, Berry Howard, LLP, 94 Conn.App. 569, 577, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

Here, whatever the negotiations between Mellon and the land trust may have been, it is undisputed that there was no agreement between the parties as to the degree to which the defendants would have access to the land trust's property to cut or trim trees. While the defendants undisputedly have a prescriptive easement that includes the right to trim trees, that right does not include clear cutting. Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 105, 114-15. The most that the defendants have argued about the parties' negotiations is that the land trust had not foreclosed the possibility of clear cutting the land. Without any final agreement, then, it should have been no surprise to the defendants that once they clear cut the 2.5 acres without the land trust's permission that the land trust would report this to the state police because its property had been entered and taken. The defendants' implicit suggestion that because its negotiations with the land trust were unsuccessful that it could trespass and clear cut trees with impunity; indeed, free from any lawful complaint, is at the very least disingenuous.

Morever, the fact that the land trust's property had been clear cut without its permission is sufficient to justify a reasonable person in the belief that he or she had reasonable grounds to file a report with the resident state trooper. See Mulligan v. Rioux, supra, 229 Conn. 739. As a matter of law, the court finds that this constitutes probable cause. See Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94. Thus, the plaintiffs' motion for summary judgment on the defendants' claim of malicious prosecution is granted.²⁴

24 The land trust also asserts the defense of the Noerr-Pennington doctrine as to the abuse of process and malicious prosecution counts. In Zeller v. Consolini, 59 Conn.App. 545, 547-49, 758 A.2d 376 (2000), the plaintiffs alleged tortious interference with a business relationship and vexatious litigation against the defendants and the trial court applied the Noerr-Pennington doctrine and granted the defendants' motion for summary judgment. The Appellate Court affirmed the trial court finding that the defendants' multiple appeals were an attempt "to use whatever lawful means were at their disposal to challenge the plaintiffs' activities on substantive grounds." Id., 558. The court concluded, "While not ultimately successful or of overwhelming strength, those zoning challenges were not so objectively baseless that no reasonable litigant could reasonably expect success on the merits, nor did the [defendants in a previous action] ignore procedure or misrepresent facts. We therefore conclude that those actions do not contribute to the conclusion that the defendants in this case have committed a sham." Id., 561.
In the present case, in light of the decisions of the trial court and the Supreme Court in the enforcement and DEP actions and the evidence submitted, this court cannot find that Vanderstad's criminal complaint was objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. The plaintiffs' actions do not lead to the conclusion that they have committed a sham. Indeed, the plaintiffs were simply using whatever lawful means were available to protect their land. Therefore, the court agrees with the plaintiffs that land trust's actions are protected by the Noerr-Pennington doctrine.

2. Defamation

The defendants allege that the Ventres, Susan Merrow and the land trust, through Vanderstad, defamed them by making statements to the public and the media that the defendants committed the crimes of criminal trespass, criminal mischief and larceny in that they maliciously destroyed sensitive wetland property. Further, the defendants maintain that the plaintiffs' statements were knowingly false or in reckless disregard of the truth.

"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007).

"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation . . . Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it . . . Whether a publication is libelous per se is a question for the court." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 848, 888 A.2d 104 (2006).

As to libel on the part of the land trust, Vanderstad, according to her deposition, apparently stated to the press that she was "appalled" by the cutting of the trees. This simply does not qualify as a defamatory statement. "To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).

The same is true for Susan Merrow's statement to the Hartford Courant that "[t]here's a general sense of astonishment on the part of the community." (Exhibit B attached to Ventres and Susan Merrow's Memorandum in Support of their Motion for Summary Judgment in the land trust action.) Her comment in the Middletown Press — "[w]e believe this was a criminal activity" — again is mere opinion. (Exhibit E attached to Ventres and Susan Merrow's Memorandum in Support of their Motion for Summary Judgment in the land trust action.)

Additionally, Ventres' statements in the Hartford Courant that "it is a clear wetland violation with land destruction and adverse impact to the wetlands"; (Exhibit B attached to Ventres and Susan Merrow's Memorandum in Support of their Motion for Summary Judgment in the land trust action); cannot be viewed as anything other than the truth in light of the decisions of the trial court and the Supreme Court. "Truth is an absolute defense to an allegation of libel." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984).

Furthermore, the statements by Vanderstad and Ventres to the commission are privileged. "Whether a communication is made upon an occasion of privilege is a question of law." (Internal quotation marks omitted.) Dlugokecki v. Vieira, 98 Conn.App. 252, 256, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).

"The effect of an absolute privilege in a defamation action is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition . . .

"The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not . . . It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character . . .

"The principal factors to be considered are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties . . . Further, quasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature." (Citation omitted; internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 78 Conn.App. 549, 553-54, 827 A.2d 793 (2003), aff'd, 271 Conn. 78, 856 A.2d 372 (2004).

Pursuant to § 22a-44, among other statutes, the commission may exercise judgment and discretion, hear and determine facts, decide to make binding orders and judgments affecting the personal or property rights of private persons, examine witnesses and hear the litigation of the issues on a hearing and enforce decisions. The commission's fact finding determinations in December leading up to its issuance of the cease and desist order qualify as a quasi-judicial proceeding under Craig. Furthermore, the comments by Ventres and Vanderstad were relevant to the controversy in that they were addressed to the commission members and gave the basis, as perceived by Ventres and Vanderstad, for issuing the cease and desist order. See Dlugokecki v. Vieira, supra, CT Page 8905 98 Conn.App. 258-59. Indeed, Vanderstad's comments were solicited by the commission. Hence, the court finds that the statements by Vanderstad, on behalf of the land trust, and by Ventres to the commission are privileged. In sum, the plaintiffs' statements were not defamatory or were privileged and, therefore, summary judgment in favor of the plaintiffs is granted as to the defendants' claims of defamation.

3. Invasion of Privacy by False Light

The defendants allege that the statements by Susan Merrow, Ventres and Vanderstad, on behalf of the land trust, placed the defendants in a false light, that the statements were false or made in reckless disregard of the truth and that the statements harmed their reputation and caused Mellon injury, anxiety, embarrassment and humiliation. "[P]ublicity which places the plaintiff in a false light in the public eye" is one of the four types of invasion of privacy. (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn.App. 123, 132, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). "To establish invasion of privacy by false light, the plaintiffs were required to show that (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Id., 132-33.

In the present case, the only allegation that might place the defendants in a false light is that Susan Merrow stated to the Middletown Press that "[w]e believe this was a criminal activity." As stated above, Susan Merrow cannot be liable for a comment that is opinion. See Daley v. Aetna Life Casualty Co., supra, 249 Conn. 795. Additionally, the implication that she knew or should have known that the defendants did not engage in criminal activity because the defendants had a prescriptive easement on the land trust's property is untenable. The issue of whether the airport had an easement was not settled until Judge Sferrazza's ruling in the enforcement and DEP actions. Furthermore, even if Susan Merrow knew that the easement existed, the defendants egregiously exceeded the scope of their rights under the easement. See Ventres v. Goodspeed Airport, LLC, supra, 37 Conn. L. Rptr. 205 ("In the present case, it is abundantly obvious that clear-cutting every tree and woody-stemmed bush in the 2.5-acre site is a usage so dramatically different in extent than the felling of several trees every few years which occurred during the prescriptive period from 1983 to 1998, that one would reasonably expect the Land Trust and Nature Conservancy or any owner of the 2.5 acres to react, as well they did, to prevent such usage from happening again. The clear-cutting of the 2.5 acres was unreasonable conduct far beyond the right to cut the occasional protruding limb or tree, as had occurred during the prescriptive period. It was unforeseeable to the owners of the servient property that the periodic trimming and severing of a few or even several trees at a time, during the statutory fifteen years, would intensify to the level of stripping 2.5 acres of all woody vegetation. Prescriptive rights confer no privilege to engage in unforeseeable acts which go beyond the activity conducted during the prescriptive years Therefore, the airport defendants are liable for trespass to land for the clear-cutting activity described above." [Citation omitted.]) "The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a `major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.'" (Citation omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982). Given the Supreme Court's affirmance of the trial court's decision in the enforcement and DEP actions, Susan Merrow's comment is not such a major misrepresentation of the defendants' activities such that serious offense may reasonably be expected to be taken. See Ackiefi v. Bloomfield, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 01 4005253 (February 9, 2007, Cremins, J.) (granting motion for summary judgment because comments made by town manager to third party were not major misrepresentation of plaintiff's character).

Furthermore, a finding of reckless disregard requires "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., 230 Conn. 525, 546, 646 A.2d 92(1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995). Given the facts here, the court cannot find that there is any evidence to permit the conclusion that Susan Merrow entertained or should have entertained serious doubts as to the truth of her publication. Consequently, the plaintiffs' motions for summary judgment as to this count are granted.

4. Tortious Interference with Business Relations

The defendants allege that the land trust tortiously interfered with the defendants' business relations by "interfering with the easement and with the right of [the defendants] to cut certain trees on the [land trust] Property by engaging in an abuse of process and by defaming [the defendants] and Mellon when the [defendants] did cut the trees." "A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct." Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007). "[N]ot every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . ." (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., supra, 249 Conn. 805.

In the present case, there is absolutely no evidence of any tortious interference by the land trust. Indeed, any tortious acts were committed by the defendants. Furthermore, insofar as the defendants' allegations concern the plaintiffs' statements at the proceedings before the commission, absolute immunity bars the defendants' claim. See Rioux v. Barry, supra, 283 Conn. 350.

Moreover, "[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss . . . Therefore, in order to survive a motion for summary judgment the plaintiff must allege an `actual loss' resulting from the improper interference with her contract . . . [T]he tort is not complete unless there has been actual damage suffered." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 213, 757 A.2d 1059 (2000). Although the defendants allege that they suffered "actual losses" in their complaint, this is a mere legal conclusion unsupported by any factual allegations or evidentiary support. Therefore, summary judgment enters in favor of the plaintiffs on this count.²⁵

25 The land trust individuals also argue that the Volunteer Protection Act (VPA), 42 U.S.C. § 14501, et seq., protects them from all claims in the land trust action. The VPA, in relevant part, provides: "no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if-(1) the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of act or omission . . . (3) the harm was not caused by wilful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer . . ." 42 U.S.C. § 14503. "Volunteer" for purposes of the act is defined as "an individual performing services for a nonprofit organization or governmental entity who does not receive . . . compensation . . . or . . . any other thing of value in lieu of compensation . . ." 42 U.S.C. § 14505(6). Additionally, the VPA defines a "nonprofit organization," in part, as "any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes." 42 U.S.C. § 14505(4)(B). Pursuant to these definitions and Vanderstad's affidavit, the land trust qualifies as a nonprofit organization and its individual members are volunteers. Hence, the land trust individuals are protected by the VPA. See Shafer v. Sullivan, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 03 4001301 (May 22, 2006, Beach, J.) (41 Conn. L. Rptr. 403) (VFW volunteer immune under VPA); Avenoso v. Mangan, Superior Court, judicial district of Hartford, Docket No. CV 05 4009152 (February 14, 2006, Tanzer, J.) (40 Conn. L. Rptr. 637) (soccer club and coach immune from liability); Gaudet v. Braca, Superior Court, judicial district of Fairfield, Docket No. CV 98 0351943 (November 27, 2001, Thim, J.) [31 Conn. L. Rptr. 53] (volunteers of football booster club not liable).

5. Abuse of Process against James Ventres

The defendants assert a claim of abuse of process in the land trust action. This count has previously been discussed in the context of the counterclaim to the enforcement action. As stated above, the court grants the plaintiffs' motion for summary judgment on this count because there was no abuse of process.

IV

For the reasons discussed herein, the plaintiffs' motions for summary judgment are granted as to all counts in the counterclaim to the enforcement action, in the land trust action and in the civil rights action, counts one through four. The plaintiffs' motion for summary judgment as to counts five and six of the civil rights action was previously granted by Judge Sferrazza. Thus, judgment enters for the plaintiffs.

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