Opinion
No. CV04-4001115S
March 10, 2008
MEMORANDUM OF DECISION
The plaintiffs, Brian and Dolores Sinotte, purchased real property on October 1, 1971 located at 82 Old Colony Drive, Waterbury, CT. The residence is a single-family ranch-style home with a finished basement. The plaintiffs have an 8" lateral sanitary sewer connecting with the defendant City of Waterbury's 15" gravity run sanitary sewer line downstream.
Almost immediately after their purchase, the plaintiffs began to experience sewer backup problems that affected their basement. Brian Sinotte testified that the backups occurred in 1974, 1987, 1992, 1997 and 2001. Dolores Sinotte, his wife, stated in a letter to the defendant city's Board of Aldermen dated May 3, 2002 that the sewer backups occurred in 1978, 1992, 1997 and 2001 as well as minor incidents from 1992-1997. (Plaintiffs' Exhibit G.) Lastly, the plaintiff testified that a backup occurred as recent as June 2006 but did not amend their pleadings to reflect this.
The plaintiffs prepared a diagram of improvements to the entire basement at 82 Colony Drive. Originally the garage area was underneath the house. Later the garage was turned into a large workshop and a bathroom was added with a separate room for the laundry and furnace. The rest of the basement was made into a large family room with a bar and a sink. (Plaintiffs' Exhibit Q.)
The City of Waterbury has reimbursed the Sinottes in the past for damages due to sewer backup that occurred on October 9, 1992. (Plaintiffs' Exhibit L.) There also was testimony that the plaintiffs received money from the city for damages due to sewer backup in the 1970s. (Plaintiffs' Exhibit J.) In addition, the Sinottes have received payments for damages to their personal property from time to time from their homeowner's insurance carrier including those associated with the present action.
The plaintiffs have withdrawn their damage claims for personal property from this lawsuit and now seek diminution of value to their home by way of inverse condemnation as well as emotional stress.
The court finds that from all the testimony and exhibits offered into evidence by the parties to the action, that the City of Waterbury was acutely aware of the recurrent problems with the chronic sewer backup at 82 Old Colony Drive, Waterbury, CT. In fact, current records from the water pollution control indicated that either periodic cleaning or regular maintenance was performed on the sewer main for Old Colony Drive at least 14 times from February 25, 2002 through November 11, 2006. (Defendant's Exhibit 11.)
At the present time, the plaintiffs still experience gurgling in their plumbing and on occasion, the bathroom and kitchen sink on the first and only floor of their dwelling have had sand, twigs and debris deposited from the sewer back up.
From 1971 to the present, the plaintiffs have installed or modified their existing house plumbing on several occasions including three backflow devices installed in the 1970s to prevent sewer backup. One device was installed for the basement washing machine, another device for the basement toilet and a third device for the bar sink in the family room. Further, the plaintiff installed a clean-out drain receptacle as well as a cap to the lateral. All work, after the dwelling was purchased, was performed by Dolores Sinotte's brother, a licensed plumber, and this included the clean-out and snaking of the lateral.
There is no question that sewage entered the plaintiff's basement on several occasions, causing havoc and damage to their personal property and requiring great efforts to remedy the problem. There also is no question that this and the constant recurrent threat caused the plaintiffs to dismantle the family room and lavatory. Specifically, the diminution of value to the plaintiff's real estate was to the value of the finished basement room, lavatory and workshop.
DISCUSSION
The defendant first argues that the plaintiffs' tort claims are barred by the statutes of limitation and repose embodied in General Statutes §§ 52-577 and 52-584. The evidence reflects that the plaintiffs' sewage backups have occurred on a number of occasions between 1971 and the present, with the latest serious incident occurring on June 17, 2001. The present suit was not filed until September 1, 2004, over three years from the very latest date the alleged conduct causing the problem could have conceivably occurred. Notwithstanding the fact that the plaintiffs had an intent to file suit and even filed notice of such with the defendant, the plaintiffs did not file suit within the three-year maximum time period allowed by either § 52-577 or § 52-582. They have proffered no argument as to why the statutes should not apply or should be tolled in the present circumstances. Therefore, their common-law tort claims are time-barred and unavailing.
Specifically, negligence, nuisance, and trespass.
Section 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
Section 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
The next legal question to be decided is whether inverse condemnation occurred and whether the present fact situation presented to the court by way of testimony and exhibits satisfies the larger requirement for same. "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." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 73-74, 808 A.2d 1107 (2002). "Moreover, the legal principles that apply in eminent domain proceedings generally apply with equal force in inverse condemnation actions." Id., 74-75.
The defendant argues that no constitutional taking has occurred because the plaintiff's property has not been rendered substantially valueless nor their use of it almost totally destroyed. The plaintiff counters that the property need not be rendered completely valueless; rather, a partial diminution in value is sufficient.
Because the court finds that no taking has occurred, it need not address the defendant's argument that no requisite regulatory action was taken by the city.
Several recent Supreme and Appellate Court cases inform this court's decision in this regard. In Citino v. Hartford, 51 Conn.App. 262, 721 A.2d 1197 (1998), the court was presented with the question of "whether anything less than a total and permanent loss of property or a property right can constitute an inverse condemnation." Id., 277-78. The plaintiff in Citino claimed that the defendant city's failure to go forward on a promised redevelopment plan for the area in which his property was situated amounted to a taking of his property, because it rendered it economically useless. The failure to follow through with the plan had caused the area surrounding the plaintiff's property to deteriorate, and all the surrounding tenants had been moved out of their apartments, which remained abandoned. The defendant argued that, although the economic value of the property was severely diminished, the property had some physical use permitted by zoning and, therefore, inverse condemnation was inapplicable. The court, siding with the plaintiffs, opined that "[f]or inverse condemnation to occur, property does not have to be appropriated by governmental action to the extent that no value remains. It is sufficient if use of property is severely restricted and its profitability greatly reduced as a result of the action of the government . . . We conclude that inverse condemnation is not precluded where the property involved has not been stripped of all physical use for a purpose permitted by zoning." (Citations omitted.) Id., 278-79. The court went on to state its holding thusly: "There need be only a near total destruction of the land's prior use and a marked depreciation in value . . . The test is whether the property no longer has any reasonable and proper use and whether the economic utilization of the land has been, for all practical purposes, destroyed." (Citation omitted.) Id., 280.
Recently, the Supreme Court decided the case of Tilcon Minerals, Inc. v. Bristol, 284 Conn. 55, 931 A.2d 237 (2007). The trial court had found that the city, which had taken a portion of the plaintiff's property outright by eminent domain for use as a landfill, was also liable to the plaintiff for taking 19.85 acres of the plaintiff's land by inverse condemnation, which had become contaminated by leachate from the landfill. Id., 61-62. The Supreme Court reversed, on the basis that the marketability of the property was not totally destroyed; rather, its value had been reduced by about half. "[T]here 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." (Internal quotation marks omitted.) Id., 84. The plaintiff in Tilcon would still have access to and be able to use the property; only its marketability was diminished. Id. The court went on to unequivocally state, after recognizing the holding in Citino, that "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." Id., 85. The court noted that "Tilcon was not deprived of all reasonable and proper use of the property because the groundwater had no effect on its present mining-related activities and [there was] . . . no evidence that the property could not be marketed for residential development even if burdened by a stigma."
Tilcon does not overrule or even specially limit Citino; however, it does reaffirm in no uncertain terms that in order for a property owner to succeed on an inverse condemnation claim, either the use of an entire parcel of property must be substantially destroyed, or its economic value totally destroyed, and that the showing of a loss of use carries a high burden. In the present case, it is clear that the property still has economic value, and that the plaintiffs are still able to use the property as a residence. Although, in certain circumstances, courts have found a portion of a larger parcel of property to have been inversely condemned; e.g., Citino v. Hartford, supra, 51 Conn.App. 262; see also Tryon v. Commissioner of Transportation, Superior Court, judicial district of Hartford, Docket No. 380348 (February 21, 1991, Bieluch, J.T.R.) (taking of 14 feet of plaintiff's front yard leaving insufficient access from highway to building could constitute taking); research revealed no case law in
Connecticut having held that the interference with or even total destruction of only a portion of a home could support such a claim when the remainder of the home may be, and in fact is, able to be used to its fullest extent. The law is rife with references to "land" or "parcel" or "tract" or portions thereof; see, e.g., Laurel v. Connecticut, 169 Conn. 195, 201-02, 362 A.2d 1383 (1975); damages to a portion of a building or structure have not specifically been considered. Under the traditional takings rubric, the "use" of the plaintiff's house is as a residence; if the plaintiffs are able to continue to reside there and use a substantial portion of the house, there is no "taking" in the constitutional sense. Even the court in Citino recognized that "[t]here need be only a near total destruction of the land's prior use and a marked depreciation in value . . . The test is whether the property no longer has any reasonable and proper use and whether the economic utilization of the land has been, for all practical purposes, destroyed." (Citation omitted; emphasis added.) Citino v. Redevelopment Agency of City of Hartford, 51 Conn.App. 262, 280, 721 A.2d 1197, (1998). In the present case, the "land's prior use" is that of a residential home. The test is not whether the particular portion of the building is destroyed, but whether the use as a whole of a use of land suffers "near total destruction." It is the destruction of the use, not the actual physical property, that is relevant; here, the relevant "use" is that of a residential home, not the use of the basement for entertaining purposes.
It is also worth noting that the constitutional right to just compensation is not meant to remedy every intrusion onto private property by a government actor, for which other common-law or statutory remedies are available. In Albahary v. Bristol, 276 Conn. 426, 886 A.2d 802 (2005), the Supreme Court drew a distinction between damage to property constituting a taking and that falling within the ambit of traditional negligence. "In Plunske [v. Wood, 171 Conn. 280, 370 A.2d 920 (1976)], this court concluded that a plaintiff can receive just compensation in a condemnation proceeding for damage to land that has not been formally taken if the damage is the necessary, natural and proximate result of a taking for a public use. Id. 284-85. In other words, we effectively concluded that, if damage to the untaken land is the necessary, natural and proximate result of a public use, then the land, or at least certain interests in it, have been taken by inverse condemnation and the plaintiff is therefore entitled to just compensation. If the damages are caused by the condemnor's negligence, however, then the plaintiff is relegated to an action sounding in tort." (Emphasis added.) Albahary v. Bristol, supra, 276 Conn. 439-40.
In a footnote, the court in Albahary noted that Plunske was not limited to a situation where a formal taking had occurred, and surrounding property was damaged, but restated the distinction between damage due to negligence and inverse condemnation. The court cited various decisions from other jurisdictions and the variety of tests that have developed to winnow out negligence or nuisance cases from true inverse condemnation claims. Id., 438 n. 10. The court did not adopt any one of these tests, not being presented with that particular issue. In Tamm v. Burns, 222 Conn. 280, 285, 610 A.2d 590 (1992), however, the court opined: "[T]he complaint alleges that the . . . removal of trees from state property has exposed the plaintiff's property to the noise, unsightliness, and fumes, as well as toxic emissions from traffic . . . as well as the presence of a holding pond for toxic substances on property adjacent to the plaintiff's property. Although such allegations could conceivably support a claim of nuisance or some other sort of tortious interference by the state with the plaintiff's use of his property, they do not amount to a `taking' of the plaintiff's property in the constitutional sense."
A number of courts in other states have characterized the distinction between nuisance and inverse condemnation as merely one of degree; "a de facto appropriation differs from a trespass by the extent of its egregiousness . . . and permanence." Sassone v. Queensbury, 550 N.Y.S.2d 161, 162, 157 A.D.2d 891 (1990) Connecticut has not expressly or impliedly adopted this rationale.
In the present case, the plaintiff has alleged damages to their basement resulting from improper maintenance of a sewer line. Even under the expansive reading of Plunske espoused by the court in Albahary, this is not the "necessary, natural and proximate result of a public use"; rather, it is, if anything, a nuisance or the unintended result of negligence. This court has sympathy for the plaintiffs, who have clearly experienced understandable and significant frustration and hardship as a result of the sewage backups in their basement. This court may not, however, grant relief where the law precludes it, and the plaintiffs here have no remedy under a theory of inverse condemnation. Therefore, judgment will enter for the defendants on all counts.
The plaintiff cites Robinson v. Ashdown, 301 Ark. 226, 231-32, 783 S.W.2d 53 (1990) for the proposition that damage from sewage backup can ripen into an inverse condemnation claim, as cited by Keeney v. Old Saybrook, 237 Conn. 135, 163 n. 24, 676 A.2d 795 (1996). The court in Keeney, however, merely cited this in passing and in a different context, as inverse condemnation was not at issue. Both Robinson and the other foreign case cited by the plaintiff, Dekalb County v. Orwig, 261 Ga. 137, 138-39, 402 S.E.2d 513 (1991) held that in order for a nuisance to rise to a constitutional taking, it must be of a continuous nature and incidents of damage must have occurred after the government actor knew of the likelihood of damage to the property. Connecticut, however, has never expressly adopted this position; although Robinson is also cited in Albahary v. Bristol, supra, 276 Conn. 438 n. 10, for example, it is only in the context of a list of foreign jurisdictional cases having considered whether property damage is properly viewed as a constitutional taking or common-law tort. Other cases cited therein have held that the two claims are mutually exclusive. See, e.g., Columbia Basin Orchard v. United States, 132 F.Sup. 707, 708-09 (Ct.Cl. 1955).