Opinion
CV166015258S
12-20-2016
Susan Vicino et al. v. Town of Old Saybrook et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT TOWN OF OLD SAYBROOK'S MOTION TO STRIKE (#111)
Elpedio N. Vitale, J.
Pursuant to Connecticut Practice Book § 10-39 et seq., the Defendant, Town of Old Saybrook, moves to strike the Third, Fourth, and Fifth Counts of the Plaintiff's Complaint, dated March 22, 2016. The Defendant alleges the Third, Fourth and Fifth Counts do not state claims upon which relief can be granted. Specifically, the defendant contends that the Plaintiffs have not alleged facts sufficient to state a claim under C.G.S. § 8-26 for violation of a subdivision approval (Third Count), and no cause of action exists for unlawful expansion of an easement agreement (Fourth Count). In addition, the defendant argues that the Coastal Management Act, Conn. Gen. Stat. § 22a-90 et seq., does not apply with respect to claims of degradation of the visual quality of coastal resources (Fifth Count).
Nature of the Proceedings
On March 29, 2016, the plaintiffs, Susan Vicino and David Foy, commenced this action by service of process on the defendants, the Town of Old Saybrook and Custom Fence Design, LLC. In their complaint, the plaintiffs allege the following facts. On September 20, 2000, the Town of Old Saybrook Planning Commission approved the " Saltaire Subdivision, " a five-lot subdivision. Two of the subdivided lots are owned by the plaintiffs. The defendant is the holder of an easement titled " Scenic Overlook and Access Easement" (easement), dated January 25, 2002, which was granted pursuant to the Town of Old Saybrook Planning Commission's approval of the Saltaire Subdivision and which is clearly indicated on the subdivision map or plan. There was a split-rail fence and stabilizing vegetation across the easement area and the plaintiffs' properties. Beginning on February 25, 2016, the defendant--acting through its agent, servant, or employee, Custom Fence Design, LLC--dismantled the existing fence, removed sections of stabilizing vegetation, and began installing a new fence upon the easement and the plaintiffs' properties. The new fence was higher, thicker, and more obtrusive, and impaired the sight line and visibility of the scenic view to a greater extent than the original fence.
The motion before the court was filed by the Town of Old Saybrook, who will be referred to throughout the decision as " the defendant." When the court references the co-defendant, it will be referred to by " Custom Fence Design, LLC."
The plaintiffs' complaint consists of five counts, all asserted as to both defendants: (1) trespass; (2) conversion; (3) violation of the terms of the subdivision approval pursuant to General Statutes § 8-26; (4) unlawful expansion of the easement; and (5) violation of the Coastal Management Act, General Statutes § 22a-90 et seq. (Act). In count three, the plaintiffs further allege that, by removing the split-rail fence and installing a new one, the defendant acted without approval of the Town of Old Saybrook Planning Commission. In count four, the plaintiffs also allege that, by beginning to install a new fence outside of the easement, the defendant attempted to unlawfully expand the easement and encroach upon the plaintiffs' land. Moreover, in count five, the plaintiffs allege that, by installing a new fence with greater dimensions, the defendant significantly altered the natural features of vistas and viewpoints, that the defendant thus degraded the visual quality of coastal resources, that the defendant did so without the required permits or waivers, and consequently all of these actions violated the Act. The plaintiffs seek six temporary and permanent injunctions, money damages for trespass and conversion, money and actual damages, civil penalties as provided for in General Statutes § 22a-106, and other relief.
On June 17, 2016, the defendant filed the instant motion to strike counts three, four, and five of the plaintiffs' complaint. In support of the motion, the defendant has filed a memorandum of law. In response, on July 20, 2016, the plaintiffs filed a memorandum of law in opposition. The defendant filed a reply to the plaintiffs' opposition on August 25, 2016. The matter was heard at short calendar on August 29, 2016.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted." Practice Book § 10-39(a). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). The court will address in turn each of the three counts that are the subject of the motion.
A.
Count Three
(C.G.S. § 8-26)
The defendant argues that count three should be stricken because the plaintiffs have not alleged facts sufficient to state a claim under § 8-26 for violation of a subdivision approval. In particular, the defendant argues that the purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions and that, as the plaintiffs do not allege that there was any action taken by the Town of Old Saybrook Planning Commission relative to a subdivision application, the plaintiffs cannot state a claim under this statute. In the alternative, the defendant argues that if the court finds that § 8-26 applies, the statute dictates that the plaintiffs' remedy would be an administrative appeal. Since the plaintiffs did not pursue an administrative appeal, this cause of action is therefore not properly before the trial court. Consequently, the defendant asserts this circumstance provides a further basis to strike the third count.
The plaintiffs argue that the statute applies because they have a specific legal interest that has been injured by the defendant's actions, and those actions violated the approved subdivision conditions. The plaintiffs further argue that they have alleged sufficient facts to state a claim under this statute and that, as a result, the court should deny the defendant's motion to strike count three of the complaint.
General Statutes § 8-26 governs the procedures by which a municipal planning commission shall receive, review, and approve subdivision and resubdivision applications and plans, addresses what these commissions can and cannot do, and establishes the time frame in which the commissions must act. The plaintiffs have not sufficiently alleged that an application was before the Town of Old Saybrook Planning Commission regarding the defendant's actions, nor that they submitted a complaint addressing the defendant's actions, nor that the Town of Old Saybrook Planning Commission did not act appropriately. The plaintiffs have not alleged that they have appealed from any decisions by the Town of Old Saybrook Planning Commission.
General Statutes § 8-26 provides in relevant part:
B.
Count Four
(Unlawful Expansion of an Easement Agreement)
The defendant moves to strike count four of the plaintiffs' complaint on the ground that, under Connecticut law, there is no cause of action for unlawful expansion of an easement agreement. The defendant argues that Connecticut's common law recognizes a claim for negligent use of an easement, however the plaintiffs attempt to state a cause of action that does not exist in Connecticut.
The plaintiffs contend that they seek to enforce the easement for its boundaries rather than for its terms. The plaintiffs assert that this is a question of equity that must be reserved for the trier of fact, and that the court should deny the defendant's motion to strike count four of the complaint. At oral argument, the plaintiffs further argued that our courts have recognized that plaintiffs should be allowed to test out new causes of action.
In the court's view, it is unnecessary to " test out" or create a new cause of action in the circumstances of this case. When deciding a Motion to Strike, it is axiomatic that " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Emphasis added; internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. This principle does not limit the analysis to whether the facts provable in the complaint would support the cause of action asserted. Indeed, the court " construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency, " with the understanding that " [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Id. With this framework, the court now turns to the law governing easements.
Following the guidance of the Restatement (Third) of Property, Servitudes, our courts have long applied " a contracts oriented view of the law of easements and servitudes." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 830, 717 A.2d 1232 (1998) (citing Restatement [Third], Property, Servitudes [Tentative Draft No. 4] [1994], introduction, p. xvii). " The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." (Internal quotation marks omitted.) Center Drive-In Theatre, Inc. v. City of Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974). In determining whether a use meets these requirements, the court must consider " the intentions or the reasonable expectations of the parties, " as these are " the overarching consideration in the construction of a servitude." Abington Ltd. Partnership v. Heublein, supra, 831.
" Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, § 4.10 [of the Restatement (Third)] permits the beneficiary of an easement to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose. The manner, frequency, and intensity of the beneficiary's use of the servient estate may change over time . . . to accommodate normal development of the dominant estate or enterprise benefited by the servitude." (Internal quotation marks omitted.) Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 637, 866 A.2d 588 (2005).
Finally, the court notes that a party's use need not be intentional in order to be found unreasonable or burdensome. " The owner of an easement may be held liable for damage caused by his negligent use of the easement, and this liability extends to damage to the servient estate." Center Drive-In Theatre, Inc. v. City of Derby, supra, 166 Conn. at 464.
In the context of a Motion to Strike, the issue is whether the plaintiffs have alleged facts sufficient for the court to find that the defendant's activities constituted a violation of an easement. This requires a determination of whether the defendant used the easement in a manner that was unreasonable or excessively burdensome on the servient estates in light of the intentions or reasonable expectations of the parties at the time the easement was created. Taking the facts alleged in the complaint as true, the plaintiffs allege that the fence and vegetation existed prior to the parties' entering into the easement, and that the defendant's conduct, in removing the fence and vegetation without permission and beginning to erect a new fence without permission, went beyond the terms of the easement. The plaintiffs allege that the new fence is higher, thicker, and more obtrusive, and impairs the sight line and visibility of the scenic view to a greater extent than the original fence. The plaintiffs assert that the Saltaire Subdivision specifically contemplated the persistence of the design and location of the original fence. The plaintiffs argue that the court can therefore infer that the defendant's conduct exceeds the intentions and reasonable expectations of the parties in a way that is unreasonable or excessively burdensome to the plaintiffs' properties.
At oral argument, the plaintiffs asserted that this precise issue is a matter of first impression, and asked with regard to this count that the court create an " unlawful expansion of an easement" cause of action. " While Connecticut case law reveals no hard and fast test that courts apply when determining whether to recognize new causes of action . . . [t]he first relevant guideline is that courts look to see if the judicial sanctions available are so ineffective as to warrant the recognition of a new cause of action." (Internal quotation marks omitted.) Reilley v. Albanese, Superior Court, judicial district of Ansonia-Milford, DocketNo. CV-15-6018220-S (December 14, 2015, Stevens, J.) (61 Conn.L.Rptr. 463, 464, ). Based on the allegations made in the complaint, the court finds that judicial sanctions are available for the harms alleged, under two causes of action already in existence: trespass; see, Abington Ltd. Partnership v. Talcott Mountain Science Center for Student Involvement Inc., 43 Conn.Supp. 424, 657 A.2d 732 (1994); and negligent use of an easement; see, e.g., Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 815; Center Drive-In Theatre, Inc. v. City of Derby, supra, 166 Conn. at 460; Zhang v. Omnipoint Communications Enterprises, Inc., supra, 272 Conn. at 627. Accordingly, it is not appropriate to create a new cause of action in this matter.
Moreover, the court notes that the plaintiffs have also brought a trespass count in this action.
C.
Count Five
(C.G.S. § 22a-90)
The defendant argues that count five of the plaintiffs' complaint should be stricken because the Act does not apply with respect to claims of degradation of the visual quality of coastal resources. The defendant claims that the allegations of count five involve matters that it describes as " alleged degradation of the 'visual quality' of coastal resources, " affecting " issues such as scenic and aesthetic qualities." The defendant asserts that " the Plaintiffs make no allegation that the alleged 'degradation' . . . unreasonably pollutes, impairs, or destroys any natural resources of the State, " and that the plaintiffs have only asserted non-environmental matters, which the Act was not intended to address.
The plaintiffs counter that the act specifically includes the degradation of visual quality among the identified adverse impacts on coastal resources, and that the defendant's motion to strike count five of the plaintiffs' complaint should thus be denied.
The purpose of the Act is to protect the environment in coastal areas. See General Statutes § 22a-90 et seq. The plaintiffs specifically request in their prayer for relief " [c]ivil penalty for each separate and distinct violation and for each day of continuing violation as provided for in . . . § 22a-106 . . ." General Statutes § 22a-106a, which authorizes a civil penalty, provides in relevant part: " Any person who conducts an activity within the coastal boundary without having received a lawful approval from a municipal board or commission under all of the applicable procedures and criteria listed in sections 22a-105 and 22a-106 or who violates the terms and conditions of an approval under said sections shall be liable for a civil penalty . . . The Commissioner of Energy and Environmental Protection may request the Attorney General to bring a civil action in the superior court for the judicial district of Hartford to seek imposition and recovery of such civil penalty." The plaintiffs do not sufficiently plead that they presented notices or complaints to either the defendant, the Town of Old Saybrook Planning Commission, the Commissioner of Energy and Environmental Protection and/or the Attorney General or that any applications were before these parties concerning the defendant's actions.
The plaintiffs clearly meant to cite General Statutes § 22a-106a, titled Civil Penalty, rather than § 22a-106, as said section concerns criteria and process for action on coastal site plans.
General Statutes § 22a-106a provides in relevant part: " Any person who conducts an activity within the coastal boundary without having received a lawful approval from a municipal board or commission under all of the applicable procedures and criteria listed in sections 22a-105 and 22a-106 or who violates the terms and conditions of an approval under said sections shall be liable for a civil penalty of not more than one thousand dollars for each offense. Each violation 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 Commissioner of Energy and Environmental Protection may request the Attorney General to bring a civil action in the superior court for the judicial district of Hartford to seek imposition and recovery of such civil penalty."
CONCLUSION
For the foregoing reasons, the defendant's motion to strike count three, count four, and count five of the plaintiffs' complaint is granted.
(a) All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval . . . shall be submitted to the commission with an application in the form to be prescribed by it . . . * * * (c) The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. Such public hearing shall be held in accordance with the provisions of section 8-7d. (d) The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d . . . For the purposes of this subsection, an application is not " pending before the commission" if the commission has rendered a decision with respect to such application and such decision has been appealed to the Superior Court.