Opinion
FSTCV166029447S
10-30-2019
CITY OF STAMFORD v. Thomas YANICKY et al.
UNPUBLISHED OPINION
OPINION
GENUARIO, J.
This is an action brought by the City of Stamford seeking to foreclose a "Blight Lien" on the subject property. The defendant Thomas Yanicky (the defendant) is the record owner of the property. Other defendants include alleged subsequent encumbrancers. The defendant filed an answer and special defense admitting that he was the owner and in possession of the premises but denying the substantive allegations of the complaint. The special defenses allege that the Stamford Blight Lien ordinance is void for vagueness, that the defendant was not given proper notice of the blight violations and as a result his due process rights were violated, that the action constitutes a regulatory taking without due process of law, and that the City of Stamford is abusing its power and therefore has unclean hands.
Besides its memorandum of law, the plaintiff has filed an affidavit of the Stamford Anti-Blight Officer, copies of portions of Stamford Blight Lien Ordinance, a copy of its November 12, 2015 letter to the defendant entitled "Notice of Blight Violations," a copy of its letter of January 5, 2016 entitled "Notice of Civil Citation" and certified copies of certificates of the city of Stamford’s "Certification of Blighted Properties" recorded in the land records referencing the subject property.
In his affidavit, the Anti-Blight Officer states inter alia that "On November 12, 2015, in accordance with the blight ordinance section 146-47(b) and Connecticut General Statute § 7-148(c) 7(H)(xv), a Notice of Blight Violations was sent to the defendant ..." The notice indicated that the penalty would be $100 per day. This affidavit further states that though Mr. Yanicky was in communication with the Anti-Blight Officer subsequent to his receipt of the letter, he failed to schedule a resolution conference and he failed to notify the Anti-Blight Officer in writing if the blighted conditions on the property had been cured within seven days of the November 12th notice. The city began invoking the $100 per diem penalty eight days after the November 12th letter on November 20, 2015. The affidavit further states that on January 15, 2016 the Anti-Blight Officer sent the defendant a "Notice of Civil Citation" indicating that he had an opportunity to appeal the citation before the Blight Hearing Committee within 10 days of the day of the notice by providing written notice that he intended to do so. The affidavit asserts that the defendant failed to deliver a written request for a hearing before the Blight Hearing Committee. On February 2, 2016 the Anti-Blight Officer caused a lien certificate of blighted property to be recorded in the Stamford Land Records, no payment has been made for the accumulated blight fines.
The affidavit continues that on October 25, 2018 (almost three years after the original notice) the Anti-Blight Officer re-inspected the property and determined that the blight conditions had been remediated and the violations cured and ceased the $100 per diem penalty as of that date. The affidavit concludes that the balance due and owing the City of Stamford is $107,100. The City in its prayer for relief also seek attorneys fees, appraisal fees and typical costs commensurate with the bringing of a civil action.
In opposing the Motion for Summary Judgment the defendant has also filed an affidavit stating that he purchased the subject property (his childhood home) from the estate of his late father and that in 2006 he obtained building permits to begin renovation of the home. He obtained financing for the "heavy construction phase" of the renovation. However, in 2008 he was laid off due to the economic times and he worked as an independent contractor until 2013. He states that he received a blight notice in August 2014 from the Anti-Blight Officer. He contacted the Anti-Blight Officer through e-mail and ultimately resolved the 2014 issues. In November 2015 he received another notice from the Anti-Blight Officer. The parties agree on the document that the city claims provided the notice required by the ordinance. The document identifies to the offending condition only as "inadequately maintained" with reference to a City of Stamford code section. The affidavit indicates the defendant left a voicemail for the Anti-Blight Officer and sent him an e-mail indicating that he thought the notice was an error. The defendant’s affidavit indicates that he asked in these communications for the Anti-Blight Officer to clarify what "inadequately maintained" referred to so he could remedy that. The affidavit indicates that he did not receive a reply from the Anti-Blight Officer. The affidavit indicates that the next communication from the Anti-Blight Officer was on January 7, 2016 indicating that his property had been in violation of the blight ordinance since November and that he currently owed $4,700. He met with the Anti-Blight officer on February 6th and at that time was told that the "inadequately maintained" reference in the notice referred to his temporary front construction steps and "two small areas where siding had not been installed." The defendant asserts that the Anti-Blight Officer told him that if he took care of those two matters in timely fashion that would satisfy the Anti-Blight Officer and the officer would clear up the daily blight fine. He states in his affidavit that he and the Anti-Blight Officer agreed that the work could be completed by April 1, 2016. He then states that on March 5th that he received a letter from the City’s attorney indicating that the City’s attorney would be proceeding with a foreclosure for blight violations. The affidavit states that he proceeded to complete the work that he agreed upon with the Anti-Blight Officer before April 1, 2016 and e-mailed the officer to that effect. The defendant also states that in that email he asked the Anti-Blight Officer to re-inspect the property and let him know if anything else is required. Subsequently, on August 5, 2016 the defendant received the foreclosure summons.
The defendant’s affidavit raises certain genuine issues of fact. The question before the court in the context of this Motion for Summary Judgment is whether or not those factual issues are also material issues. A material issue is an issue that would make a difference in the outcome of the case. Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).
Essentially, the plaintiff takes the position that it sent the defendant the "Notice of Civil Citation" on January 5, 2016 informing him that he "may contest [his] liability before the Blight Hearing Committee by delivering, in person or first class mail written notice to Anti-Blight Officer within ten days from the date of this notice. That if you do not demand said hearing, an assessment and judgment shall be entered against you." The letter also informs the defendant that the penalty, cost and fees will continue to accrue on a daily basis "until you, as the owner, remediate the blight violation(s) and provide written notice to the anti-blight officer that the blight violation(s) is remediated." The plaintiff argues that the defendant had the right to contest his liability before the Blight Hearing committee by simply providing written notice of his intent to do so. Having failed to provide such a written request for a hearing before the Blight Hearing committee, he is barred from contesting his liability in this case.
Connecticut General Statute § 7-148(c)(7)(H)(xv) empowers municipalities to "make and enforce regulations for the prevention and remediation of housing blight" the enabling legislation empowers the adoption of such regulations "provided such regulations define housing blight and requires such municipality to give written notice of any violation to the owner and occupant of the property and provide a reasonable opportunity for the owner and occupant to remediate the blighted conditions prior to any enforcement action being taken ..." The enabling legislation authorizes the municipality to prescribe civil penalties of not more than $100 a day "for each day that a violation continues" and also authorizes the municipalities to adopt a citation hearing procedure in accordance with Connecticut General Statutes § 7-152c. Connecticut General Statute § 7-152c which sets forth the hearing procedures for such citations states that when a municipality decides to issue a citation for a violation of an ordinance such as the anti-blight ordinance it "shall send notice to the person cited. Such notice shall inform person cited: (1) of the allegations against him ..."
The city argues that it is too late for the defendant to challenge the determination of the Anti-Blight Officer and the city issuing this citation regardless of the merits of the defendant’s claim. The city argues that pursuant to the enabling statute and the ordinance that it adopted consistent therewith, the city has determined that there was blight on the defendant’s property and that if the defendant wished to challenge that determination he had several vehicles including an initial resolution conference with the Anti-Blight Officer, but more importantly an ability to appeal the citation issued on January 5th before the city’s blight committee by filing a notice that he wished to challenge the citation within ten days of the notice. Having failed to do so, the plaintiff argues that the defendant has failed to exhaust his administrative remedies provided to him, and of which he was informed by the January 5, 2016 letter. Having failed to avail himself of those remedies he cannot collaterally attack the determination of the city to levy the blight fines and liens.
The City relies on cases such as Mangiafico v. Town of Farmington, 173 Conn.App. 158 (2017), affirmed in part and reversed in part on other grounds, 331 Conn. 404 (The Supreme Court held that exhaustion of administrative remedies was not required in order to assert a claim under 42 U.S.C. 1983). Indeed there is some basis for the city’s position in reliance on the Mangiafico case. The Appellate Court in Mangiafico noted that the Town of Farmington had adopted a blight ordinance allowing for a penalty of not more than $100 per day and a citation hearing procedure.
In Mangiafico the town issued blight lien citations and pursuant to the ordinance the plaintiff requested a hearing to challenge his liability. At the hearing, the citation hearing officer reduced the amount of the plaintiff’s fines from $4,000 to $2,000. The town then imposed additional fines between. The town conducted a hearing on July 2, 2013 attended by the plaintiff after which the hearing officer provided the plaintiff with some but not complete relief. The plaintiff did not appeal from the decision of the hearing officer to the Superior Court pursuant to the town’s citation hearing procedure or general statute § 7-152c but rather instituted an action challenging, on various grounds, the constitutionality of the municipal procedure. The trial court dismissed four of the five counts holding that the plaintiff had failed to exhaust his administrative remedies and could not successfully collaterally attack the determination of the hearing officer. The trial court entered summary judgment on the remaining count. The Appellate Court affirmed the trial court and held that the defendant was required to take an appeal from the decision of the citation hearing officer if he wished to challenge the municipal determination rather than collaterally attack the municipalities determination.
The difference however between the case at bar and the Mangiafico case is that in the Mangiafico case there was no claim that the town had not followed the procedures required by the enabling statute and by the town’s ordinance itself. The enabling statute requires the municipality to adopt a regulation which mandates that the municipality "give written notice of any violation to the owner and occupant of the property and provide a reasonable opportunity for the owner and occupant to remediate the blighted conditions prior to any enforcement action being taken." (Emphasis added.) Indeed, the Stamford ordinance requires the anti-blight officer to give the property owner notice of a violation. The ordinance expressly provides that the notice of violation shall "describe the blighted conditions that violate this section and direct the owner to remove, correct or abate the violation within seven calendar days from the date of the notice." (Emphasis added.) The ordinance also requires that it "inform the owner that the owner may schedule a resolution conference with the anti-blight officer within seven calendar days from the date of notice of violations." If the municipality wishes to invoke the citation procedure the ordinance states that the citation shall inform the owner "of the allegations against said person."
The November 5, 2015 letter addressed to Mr. Yanicky states, "you are in violation of the Stamford City Code of Ordinance, chapter 146, Housing Stamford, Article III, Blighted Properties, as amended as follows: 146-45(2) not being adequately maintained. You are directed to remove, correct or abate the above violations within seven (7) calendar days from the date of this notice." The City ordinance allows the anti-blight officer to impose a penalty of $100 per day "if the owner fails to remediate the violation within seven calendar days." In order to impose the significant police power authorized by the enabling statute and provided for by the ordinance the city must provide the owner with notice of the violation. In the absence of notice the City is not authorized to impose a fine. The court believes there is a genuine issue of material fact as to whether or not this city complied with the provision of its ordinance authorizing the imposition of the subject fines. The description contained in the November 5th letter gives little or no information to the defendant as to what he must do to comply within seven calendar days in order to address the City’s complaint.
The provisions of the ordinance cited in the letter, 146-45(2), states, "it is not being adequately maintained: without limitation the following factors may be considered in determining whether a structure or building is not being adequately maintained, missing or boarded windows or doors, collapsing or missing walls, roof or floor, siding that is seriously damaged or missing; fire damage, a foundation that is structurally faulty, garbage, trash or abandoned cars situated on the property (junk yard that legally licensed by the State of Connecticut)." Thus there is little or no information provided to the defendant as to the specific items that the city wants him to correct. The affidavit of the defendant compounds the problem since it recites the defendant’s attempts to communicate with the city’s anti-blight officer request clarification of what "inadequately maintained" means but that the Anti-Blight Officer did not respond to those communications. Thus, the city may not only have failed to provide proper notice initially but, according to the defendant’s affidavit, may have ignored the defendant’s attempt to schedule a "resolution conference," which it is required to provide by the ordinance. Finally, the defendant’s affidavit indicates that the blight officer met with the defendant instructed the defendant as to the two issues that he needed to correct and affirmatively represented to him that if the defendant performed the work by April 1, 2016 it would resolve the issues. The affidavit when construed in a manner most favorable to the defendant sets forth an affirmative misrepresentation by the city official charged with the administering the blight ordinance upon which the defendant relied.
The Stamford Blight Ordinance vests the city with a significant power. Indeed, if the statements contained in the defendant’s affidavit as well as the statements contained in the affidavit of the Anti-Blight Officer supplied by the plaintiff are true, the city is now seeking to foreclose on a $100,000 lien based on what may well be two relatively minor violations of the blight ordinance of which the defendant did not receive proper notice or a resolution conference. In this way the subject case is distinguishable from Mangiafico. In Mangiafico there is no claim that the City did not follow the procedures set forth in its own ordinance. In the case at bar there is a genuine issue of material fact as to whether or not the City complied with the express procedures set forth in the ordinance (and the enabling statute) required of it prior to the time it imposes a fine. Alternatively, the Anti-Blight Officer may have engaged in a resolution conference with the defendant which resulted in the resolution requiring the defendant to remediate the conditions by April 1, 2016 to avoid penalties. According to the defendant’s affidavit he then complied with the agreed-upon resolution.
Finally, this city also is claiming that it is entitled to levy fines even past the time that the blight has been corrected if it has not received written notice from the defendant that it has been corrected. Notably, the enabling ordinance allows the municipality to prescribe civil penalties of not more than $100 per day "for each day a violation continues" it does not authorize an ordinance that authorizes the continuation of fines after a violation has been cured. According, to the affidavit provided by the defendant, the violation was cured on by April 1, 2016. If the defendant can introduce credible evidence to that effect he may have the right to limit the amount of fines to which the city is entitled to the period during which the alleged blight conditions actually existed.
Nothing in this decision should be construed as a finding that the statements in the defendant’s affidavit are true, but only that they raise genuine issues of material fact as to whether or not the city complied with the prerequisites of its ordinance and the enabling statute prior to imposing the fines upon which it now seeks to foreclose.
Finally, the court notes that in bringing a foreclosure action the plaintiff is seeking to invoke the equitable powers of the court. After the review of the affidavits and the exhibits provided, this court believes that the exercise of such equitable powers in this case requires a trial in which the underlying facts may be established. See e.g. Hamm v. Taylor, 180 Conn. 491, 497 (1980) ("[A] trial court in foreclosure proceedings has discretion, on equitable considerations and principles, to withhold foreclosure or reduce the amount of the stated indebtedness").
Accordingly, the plaintiff’s motion for a summary judgment is denied.