Opinion
No. CV094011308
April 9, 2010
MEMORANDUM OF DECISION RE AMENDED MOTION TO STRIKE
The plaintiffs in this action are all record owners of condominium units in a development in Milford, Connecticut known as Baldwin Station. Their amended complaint contains a count, count twenty-one, which alleges that the condominium developer and the condominium association, both defendants in this action, have failed to properly repair and/or replace various "stone walls, common elements and retaining walls in compliance with all appropriate and applicable [building] codes, guidelines, laws and [zoning] regulations" of the city of Milford.
The defendant condominium developer is Baldwin Station, LLC, a Connecticut limited liability company.
The defendant condominium association is Baldwin Station Associtation, Inc.
The plaintiffs also named the city of Milford, its city planner, and its building official as defendants in this action (collectively, "the municipal defendants"). In count twenty-one, the plaintiffs further allege that they have informed the municipal defendants of the improperly and inadequately constructed walls and common elements, and have demanded that they take appropriate enforcement action. To date, however, the plaintiffs claim their demands have been refused. Thus, the plaintiffs claim a writ of mandamus from this court ordering the municipal defendants to enforce the relevant regulations, guidelines, codes and laws. They ask that the writ compel the municipal defendants to take enforcement action so as to require the developer and condominium association to submit accurate site maps and plans to the city of Milford, to obtain any and all necessary permits, and to properly repair/replace the stone walls, common elements and retaining walls.
The municipal defendants have now filed a motion to strike count twenty-one of the amended complaint, as well as the corresponding portions of the plaintiffs' prayer for relief. They argue that, as pleaded, count twenty-one is legally insufficient to support a claim for a writ of mandamus because: (1) the governmental functions the plaintiffs seek to have enforced are discretionary, and therefore not within the purview of a writ of mandamus; (2) the plaintiffs have not alleged they have a clear legal right to the actions they request be taken, as they must in order to justify the issuance of a writ of mandamus; and (3) the plaintiffs have not alleged they are without an adequate remedy at law, as they must in order to justify the issuance of a writ of mandamus. For the following reasons, the court agrees with the municipal defendants, and count twenty-one, along with the corresponding portions of the prayer for relief, are therefore stricken.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Practice Book § 10-39 "allows for a claim for relief to be stricken . . . if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The municipal defendants' motion to strike was filed with the court on July 6, 2009. Thereafter, on November 2, 2009, the plaintiffs filed an amended complaint which added to and renumbered the counts of the original complaint. Count twenty-one of the amended complaint is identical to count seven of the original complaint. Consequently, while the municipal defendants' motion to strike expressly targets count seven of the original complaint, it is clear that count twenty-one of the amended complaint is the count in question. The court therefore interprets the municipal defendants' motion to strike as attacking count twenty-one of the amended complaint. See HSBC Bank USA v. Benevides, Superior Court, judicial district of Fairfield, Docket No. CV 09 5021390 (February 18, 2010, Maiocco, J.) ("When any pleading is amended . . . [and] the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading. Practice Book § 10-61." (Internal quotation marks omitted.))
"The requirements for the issuance of a writ of mandamus are well settled. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).
"It is axiomatic that [t]he duty [that a writ of mandamus] compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary . . . Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action." (Citation omitted; internal quotation marks omitted.) Id., 422.
In Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1982), the Connecticut Supreme Court said that what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment, and held that municipal employees, who conducted a fire code inspection were immune from liability because their negligent acts were therefore discretionary. Furthermore, this court agrees with Judge Lager's conclusion in Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 00716343 (May 23, 2002), where she stated that "the enforcement of zoning regulations is a quintessential discretionary governmental function performed solely for the direct benefit of the public . . . Enforcement of zoning regulations . . . requires the appropriate municipal official to exercise his or her judgment as to whether a violation exists and, if so, what enforcement action, if any, to take." The interpretation and enforcement of zoning and building code regulations is a discretionary governmental duty requiring the exercise of judgment and thus falls wholly outside the parameters of the first element necessary to support the issuance of a writ of mandamus.
Thus, the plaintiffs have not sufficiently alleged a mandatory duty which they have a clear right to have enforced, but instead have alleged unequivocally discretionary duties, i.e., the enforcement of zoning and building code regulations. They therefore have not made a legally sufficient claim to support the issuance of a writ of mandamus.
In addition, the plaintiffs have also failed to allege with sufficient particularity the deprivation of a clear legal right that warrants the issuance of the extraordinary remedy of a writ of mandamus. The plaintiffs allege only conclusory statements about how the private codefendants are depriving them of some right. But the plaintiffs do not cite any specific laws or regulations which give them a clear legal right to compel the actions they demand.
Our Supreme Court has stated that "[a]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation." (Internal quotation marks omitted.) Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981). Thus, it has previously been observed that "[i]n these cases, the Supreme Court [has] found that the plaintiffs' proper recourse [is] to commence a cause of action seeking to enjoin the landowner who is violating the . . . zoning regulations. The burden would be on the plaintiffs to prove the zoning violation. This would be the proper course of action rather than this court granting the extraordinary remedy of a writ of mandamus." Battistoni v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 00 83195 (September 6, 2001, Agati, J.). The plaintiffs have therefore not made out sufficient allegations to satisfy prongs two or three of the test used to determine whether a writ of mandamus is appropriate.
For all of the above reasons, the Motion to Strike is granted.