Opinion
No. CV02 006 83 01
December 1, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #108
The plaintiffs, Joseph and Rosie Thetreault, filed a five-count complaint on June 25, 2002, alleging that the acts of the defendants, Donald Wolford and the town of Canterbury, are impairing the natural resources of the state. The plaintiffs allege that Wolford's zoning violations and the town's failure, or refusal, to enforce the zoning regulations irreparably harms them because these actions (1) damage the value of their property, (2) adversely impact the environmental status of their property, and (3) pollute, destroy, or impair the public trust in the natural resources of the state. On January 7, 2003, pursuant to Practice Book § 10-39, the town of Canterbury filed a motion to strike count five of the plaintiffs' complaint. As required by Practice Book § 10-42, the defendant filed a memorandum in support of the motion to strike, and the plaintiffs timely filed a memorandum in opposition.
I. FACTS
"Over the last several years, the defendant, Wolford, utilized his property as storage for approximately 150 to 200 lawn mowers and lawn tractors, 15 to 20 motorcycles, several automobiles, tractor trailers, approximately 100 tires, and various oil tanks, 55-gallon drums and spent auto lead acid-batteries." During the time that Wolford has been stockpiling these items, the town has issued, "on at least four occasions," cease and desist orders against him for violating the zoning regulations. The plaintiffs allege that this activity specifically violates §§ 4.1, 4.9, 4.13.4, 4.13.6, and 5 of the zoning regulations of the town of Canterbury, and that Wolford continues to use his property in this manner. The plaintiffs moreover allege that the town has failed to judicially enforce the cease and desist order against Wolford.
Zoning Regulations of the Town of Canterbury:
Section 4.1. Compliance with Regulations. No land, building, or part thereof shall hereafter be used, and no building or part thereof or other structure shall be constructed, reconstructed, extended, enlarged, moved or altered except in conformity with these Regulations . . .
Section 4.9. Storage of Waste Material. No waste or scrap material, debris, abandoned machinery, junk or similar unsightly material shall be stored or allowed to accumulate in any open space not screened from public view by either a fence, wall or evergreen hedge, or outside a completely enclosed building on any lot within the Town of Canterbury . . .
Section 4.13. Prohibited Uses. The following uses are expressly prohibited within the Town of Canterbury . . .
4.13.4 Junk yard, refuse disposal area, other than the official town refuse disposal facility.
4.13.6 Any activity which produces unreasonable noise, odors, vibrations, fumes, electrical interference, or other noxious effects considered objectionable to the residents of the area.
Section 5. Rural District.
5.2 Permitted Uses.
The following uses are permitted by right in this district:
5.2.1 One-family detached dwelling.
5.2.2 Two-family dwelling.
5.2.3 Agricultural and forestry activities.
5.2.4 Home occupations as defined in Section 2.2 and in compliance with the conditions enumerated in Section 4.8 of these Regulations. CT Page 13652
5.2.5 Religious or governmental uses.
5.2.6 Temporary stands for the display and sale of fruits, vegetables, flowers, honey or other agriculture products . . .
5.2.7 Temporary religious or entertainment gatherings . . .
5.2.8 Accessory apartments . . .
Prior to bringing this suit, the plaintiffs obtained an appraisal of their property, which surrounds Wolford's property, and also commissioned an environmental analysis of the impact that Wolford's property use has on the surrounding areas. The plaintiffs allege that the appraisal of property values demonstrates that Wolford's property could reduce the value of adjacent property by as much as 30 percent. The environmental analysis alleges that Wolford's activities release oil/chemical compounds into the soil and this has the "potential of impacting soil and ground water."
Specific to count five of the plaintiffs' complaint, the plaintiffs allege that the town "is acting in concert with Wolford to unreasonably pollute, impair and/or destroy the public trust in the natural resources of the state of Connecticut." The plaintiffs bring their cause of action against the town based on the Connecticut Environmental Protection Act (CEPA), specifically General Statutes §§ 22a-16 and 22a-18(a). It is alleged that Wolford's activities will unreasonably pollute, impair and/or destroy the public trust in the state's natural resources since these activities will "increase the risk and intensity of area ground and surface water contamination." The plaintiffs allege that the first selectman has "refused to authorize enforcement of orders of the Zoning Enforcement Officer against Mr. Wolford and others and has knowingly permitted continued violations of the Zoning Regulations by Mr. Wolford." Thereby, the plaintiffs allege, the town is acting in concert with Wolford to pollute, impair and/or destroy the public trust in the state's natural resources.
"Section 22a-16. Action for declaratory and equitable relief against unreasonable pollution. The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity 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 the state, any political subdivision thereof, 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 provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state."
"Section 22a-18. Powers of the court. (a) The court may grant temporary and permanent equitable relief or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction."
II. LAW
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The motion is "properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Id. "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." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
The town of Canterbury moves to strike count five of the plaintiffs' complaint on the grounds that (1) the plaintiffs have an adequate remedy at law without implicating the town and furthermore the plaintiffs seek an improper form of relief; (2) the town is protected by the doctrine of governmental immunity; and (3) § 22a-16 requires there be an affirmative act by the party violating the statute and the complaint lacks an allegation that the town undertook an affirmative act to pollute, impair and/or destroy the natural resources of Connecticut.
A. Adequate Remedy
In its first argument, the town makes two assertions in support of its motion to strike: (1) the remedy sought solely from Wolford will provide the plaintiffs with an adequate remedy at law and (2) the remedy sought by the plaintiffs is a writ of mandamus, not an injunction. Both arguments lack merit; the plaintiffs have sufficiently alleged the facts necessary for the requested equitable relief. For the reasons set forth below, the town's motion to strike count five on these grounds is denied.
Generally, "[a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). There are however instances where the court will grant an injunction even though there are neither allegations nor proof of an irreparable harm and the lack of an adequate remedy at law. Relevant to the present case is the situation where there is a claimed violation of a statute or state regulation. Such cases "[are] to be considered differently from a common law action for injunctive relief where allegations and proof of irreparable harm and lack of an adequate remedy at law are required . . . The rationale underlying [the] rule that the complainant is relieved of his burden of proving irreparable harm and no adequate remedy at law is that the enactment of the statute by implication assumes that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted." (Citation omitted; internal quotation marks omitted.) Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984). Additionally, "[i]t is the court's duty to carry out the intention of the legislature as expressed in the statute it has enacted and to make the remedy it has provided an effective and efficient means of dealing with violations of the act and regulations properly promulgated under its authority." Id., 430. Section 22a-16 expressly provides for "declaratory and equitable relief." General Statutes § 22a-16. The court finds that the legislature intended declaratory and equitable relief to be an effective and efficient means of addressing violations of § 22a-16; the plaintiffs are not required to allege irreparable harm and lack of adequate remedy at law in order to obtain the proposed injunction under § 22a-16.
Moreover, § 22a-16 specifically permits "any person . . . [to] maintain . . . an action for declaratory or equitable relief against the state, any political subdivision thereof, any person . . . or other legal entity, acting alone, or in combination with others . . ." (Emphasis added.) General Statutes § 22a-16. The plaintiffs, in their own right, chose to bring a lawsuit again at both Wolford and the town of Canterbury alleging that these two defendants worked in combination to violate the public trust in the natural resources of the state. Therefore, the plaintiffs do not have an adequate remedy at law for the alleged combined violation of CEPA without also involving the town.
The town next argues that the plaintiffs' remedy is wrongly characterized as injunctive relief while in actuality the plaintiffs seek a writ of mandamus. While it is debatable if there is a difference between a mandatory injunction and a writ of mandamus, the Supreme Court has said: "There are situations . . . where the use of one remedy rather than the other involves a matter of semantics . . . If the [plaintiff] is entitled to relief it is not of great importance whether we grant the relief by way of the legal writ of mandamus or the equitable remedy of injunction or by a combination of both." (Citations omitted; internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 481, 447 A.2d 1 (1987). Furthermore, the plaintiffs assert their claim against the town under the authority of § 22a-16, which clearly states that a plaintiff may maintain an action "for declaratory and equitable relief against the state, any political subdivision thereof . . . any person . . . or other legal entity, acting alone, or in combination with others . . ." General Statutes § 22a-16. Based on this rationale, the motion to strike is denied.
B. Governmental Immunity
The town argues that it is protected from suit under § 22a-16 by the doctrine of governmental immunity. When "it is apparent from the face of the complaint that the municipality was engaging in a governmental [, discretionary,] function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." Doe v. Board of Education, 76 Conn. App. 296, 299 n. 6, 819 A.2d 289 (2003). "But where it is not apparent from the allegations of the complaint that the municipality was so engaged [in a discretionary function], then the defense of governmental immunity should be pleaded." Trzaska v. Hartford, 12 Conn. Sup. 301, 302 (1943). Assuming that it is apparent that the town was performing a discretionary act and is therefore not required to plead governmental immunity as a special defense, then the town's motion has been properly brought before this court as a motion to strike.
This discussion is not to be construed as a finding that the town was engaged in a discretionary activity. Furthermore, as stated in this court's earlier ruling on the defendant's motion to dismiss, "[g]overnmental immunity must be raised as a special defense in the defendant's pleadings." (Internal quotation marks omitted.) Thetreault v. Wolford, Superior Court, judicial district of Windham at Putnam, Docket No. CV 02 0068301 (December 9, 2002, Foley J.).
In Keeney v. Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996), the Supreme Court analyzed the development of the rule of municipal immunity in the context of nuisance claims. In this analysis the court first observed that: "The rule limiting municipal liability for nuisance created through mere nonfeasance has its origins in principles of municipal immunity. Noting that municipalities are not liable, under the common law, for mere negligence in the performance of governmental functions and duties, we concluded, in Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499 (1931), that a municipality may be liable for a nuisance it creates through its negligent misfeasance or nonfeasance even if that misfeasance or nonfeasance also constitutes negligence from which the municipality would be immune." (Internal quotation marks omitted.) Id., 164-65. The court then observed that the cases that have relied on the Hoffman decision "arose in the context of claims of municipal liability for nuisance created negligently through the unintentional conduct of the municipality." Id., 165. More importantly, the language of these cases "[speak] expansively of municipal immunity in the absence of some positive act of the municipality. Despite this sweeping language, [the Supreme Court has] never held that a municipality is not liable for an intentional nuisance created through its failure to abate pollution." Id. The court in Keeney then stated: "Without deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes, we conclude that a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." Id., 166. Section 22a-16 falls within the rubric of "environmental protection statutes;" therefore, a municipality's immunity is abrogated by § 22a-16 when the municipality has created a nuisance through a deliberate failure to act to alleviate that nuisance.
The plaintiffs alleged that for the past several years the town has "refused to authorize enforcement of orders of the Zoning Enforcement Officer against Mr. Wolford and others and has knowingly permitted continued violation of the Zoning Regulations by Mr. Wolford." Accordingly, the plaintiffs have alleged sufficient facts to maintain a cause of action against the town of Canterbury; the town's motion to strike based on the argument of governmental immunity is denied.
Alternatively, the motion to strike, based on the argument of governmental immunity, is denied based on the rule of statutory interpretation that states: "statutory provisions should not be read so as to render them meaningless, unnecessary or superfluous." State v. Russo, 259 Conn. 436, 455, 790 A.2d 1132 (2002). Section 22a-16 specifically provides "for declaratory and equitable relief against the state, any political subdivision thereof . . . or other legal entity . . ." General Statutes § 22a-16. The language of § 22a-16 abolishes the town's governmental immunity. Amy other construction of the statute would render the express relief available against a municipality meaningless. The town's motion to strike based on governmental immunity is denied.
C. General Statutes § 22a-16 "Act"
The defendant lastly argues that CEPA prohibits affirmative acts of pollution and that the town's conduct, in relation to enforcing its zoning regulations against Wolford, does not amount to an affirmative act.
In Keeney v. Old Saybrook, the Supreme Court ruled that "a municipality may violate [General Statutes §§ 22a-427 and 22a-14 et seq.], which incorporate common law nuisance principles, without affirmatively causing pollution if the municipality has intentionally failed to abate a public nuisance." Keeney v. Old Saybrook, supra, 237 Conn. 160. In explaining this rule, the Keeney court set out the elements of a public nuisance and defined "intentional." The Supreme Court determined that "[a] public nuisance exists if: (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) the condition or conduct complained of interferes with a right common to the general public." Id., 162-63. The CT Page 13650 Keeney court then held: "[A]n interference with the public right, is intentional if the [municipality] . . . knows that it is resulting or is substantially certain to result from [its] conduct . . . It is the knowledge that the actor has at the time [the actor] acts or fails to act that determines whether the invasion resulting from [its] conduct is intentional or unintentional. It is not enough to make an invasion intentional that the actor realizes or should realize that [its] conduct involves a serious risk or likelihood of causing the invasion. [The actor] must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from [the actor's] conduct . . . If the invasion results from continuing or recurrent conduct, the first invasion resulting from the actor's conduct may be either intentional or unintentional; but [if] the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional." (Citations omitted; internal quotation marks omitted.) Id., 163-64. Furthermore, "in light of the strong public policy manifested by the environmental protection statutes . . . a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." Id., 166.
Connecticut recognizes that water pollution is a public nuisance. General Statutes § 22a-422. In the present case, the plaintiffs allege that Wolford and the town are engaged in conduct that will result in ground and surface water contamination — a public nuisance. In count five, the plaintiffs contend that the town, through its alleged prolonged and deliberate failure to abate the public nuisance on Wolford's property, has intentionally violated § 22a-16. Under § 22a-16, the plaintiffs have sufficiently alleged the facts required to support a claim against the town. The town of Canterbury's motion to strike on this ground is denied.
III. CONCLUSION
The town of Canterbury's motion to strike count five of the plaintiffs' complaint is denied. An injunction is the appropriate remedy under the statute, the town cannot shield itself from liability behind the wall of governmental immunity, and a municipality violates CEPA when it intentionally fails to abate a public nuisance. The plaintiffs have sufficiently alleged the facts required to sustain its cause of action in count five.
FOLEY, JUDGE.