Opinion
LNDCV166069642S Superior Court of Connecticut Judicial District of Hartford Hartford Land Use Litigation Docket
04-10-2017
Timothy J. Curt et al. v. Grace Farms Foundation, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiffs, Timothy J. Curt and Dona Bissonnette, own 1218 Smith Ridge Road, and the coplaintiff, 1208 Smith Ridge Road, LLC, owns adjacent property at 1208 Smith Ridge Road in New Canaan. The plaintiffs have brought this action against the abutting codefendants, Grace Property Holdings, LLC (Grace Holdings), and Grace Farms Foundation, Inc. (Grace Foundation), which have owned or presently own property at 365 Luke's Wood Road in New Canaan, and against Grace Foundation's president, Sharon Prince, for allegedly contaminating the plaintiffs' wetlands, stream and pond. According to the plaintiffs' complaint, they have resided at 1218 Smith Ridge Road since 2003. Grace Holdings owned 365 Luke's Wood Road from approximately August 2008, to September 29, 2014, when it transferred the property to Grace Foundation, which owns it presently. The alleged contamination of the plaintiffs' property commenced on September 12, 2013, and continued on various dates through January 10, 2016. The original complaint alleges five counts: (1) violation of the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq.; (2) violation of Grace Holdings' New Canaan inland wetlands and watercourse permit (permit); (3) violation of the Connecticut Environmental Protection Act, General Statutes § 22a-16 et seq. (CEPA); (4) trespass and (5) private nuisance.
Bissonnette is the manager of 1208 Smith Ridge Road, LLC, according to the complaint.
Additional codefendants, Sciame Construction, LLC, McChord Engineering Associates, Inc., and AMEC, LLC, were made parties recently and are not involved in the motions to dismiss.
The court refers to these defendants individually by name where necessary and, collectively, as the Grace defendants.
On February 22, 2017, the plaintiffs filed a request to amend the complaint. The request to amend has not been ruled upon by this court, but the allegations of the amended complaint would not appear to alter the court's analysis in this memorandum of decision.
On August 31, 2016, Prince filed a motion to dismiss all counts on the grounds that they fail to state a claim because the allegations have not been asserted against her in her personal capacity. She also maintains that the nuisance count is barred by the two-year statute of limitations under General Statutes § 52-584. On the same date, the Grace defendants also filed a motion to dismiss on the grounds that the plaintiffs lack standing to sue for a violation of the permit and that the nuisance count is time barred by § 52-584. On October 7, 2016, Prince filed affidavits in support of her motion to dismiss and the plaintiffs filed their memoranda of law in opposition to the motions. The Grace defendants filed a memorandum of law in reply on October 21, 2016 and Prince filed additional affidavits on November 2, 2016. On November 10, 2016, the plaintiffs filed a supplemental memoranda of law in opposition to the motion to dismiss. This court heard oral argument on January 18, 2017, and requested on March 15, 2017, that the parties file copies of the inland wetlands and watercourses regulations of New Canaan which were filed on March 29, 2017 (pleading #151.00).
There are two sets of regulations: the first set was effective on January 1, 2011, and the second set, which superseded the first set, became effective on January 1, 2013, and are the current regulations.
II
Practice Book § 10-30(a) sets forth the legal bases for a motion to dismiss: " (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 610-11, 793 A.2d 215 (2002). " In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014).
III
Prince argues that all of the counts of the complaint should be dismissed as to her because the plaintiffs have failed to allege any facts that would make her personally liable for any of the acts. In the plaintiffs' complaint, they, in relevant part, allege:
12. Defendant Sharon Prince is the President of defendant Grace Farms Foundation, Inc.
13. Defendant Prince has undertaken, at a minimum, supervisory responsibilities with respect to defendant Grace Farms Foundation, Inc.'s construction activities as well as its inadequate stormwater and erosion control measures and its unsuccessful attempts to prevent the repeated sedimentation and siltation of and increased turbidity on the wetlands, stream and pond on Plaintiffs' Property, as alleged below.
15. In correspondence to Plaintiffs Curt and Bissonnette dated September 18, 2013, defendant Prince promised measures " to ensure that this [run-off incident] will never occur again" and that she and the other defendants she supervises " will do our utmost to go above and beyond to make amends."
16. In that same correspondence, defendant Prince stated: " I am stepping into a construction meeting in a few minutes to review the root cause and current physical/construction remedies of this issue [i.e., the run-off incident of September 12, 2013] as well as to determine additional organizational and supervision measures moving forward."
In Prince's affidavit, attached to her memorandum of law in support of the motion to dismiss, she, in relevant part, states:
The issue for this court is not whether Prince may be personally liable; it is whether the court has jurisdiction to consider the plaintiffs' allegations against Prince. See Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011) (" [s]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it" [internal quotation marks omitted]). The basis of Prince's motion to dismiss is not jurisdictional and with the filing of several affidavits is more of a speaking motion to strike which is not permitted. See Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995) (" [a] 'speaking' motion to strike (one imparting facts outside the pleadings) will not be granted"), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996). Prince argues that her affidavits are permitted to support her motion to dismiss and because the plaintiffs do not offer evidence to counter them her motion should be granted. Prince cites Conboy v. State, 292 Conn. 642, 974 A.2d 669 (2009), and correctly points out in her memorandum of law in support of her motion to dismiss that " defendants are entitled to supplement the allegations of the complaint with additional facts necessary for the Court to determine the question of jurisdiction." (Emphasis added.) Indeed, the Conboy court held that " the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts." Id., 652. Nevertheless, the facts alleged in the affidavits have nothing to do with the court's jurisdiction to decide the matter. Instead, Prince's arguments go to the merits of the claims against her and refute the allegations of her personal liability. " Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). Because this ground for Prince's motion to dismiss is not jurisdictional, the motion to dismiss the complaint in its entirety as to Prince is denied.
It is noted that Prince as a corporate officer could be personally liable. See Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 141-42, 881 A.2d 937 (2005) (" It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort." [Citations omitted; internal quotation marks omitted.]), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
B
In count two, the plaintiffs seek relief, in part, for violations of Grace Holdings' inland wetlands permit based upon its alleged failures to hire an independent site monitor, to install proper erosion and sedimentation controls and to inform the wetlands enforcement agent of degradation issues. The Grace defendants move to dismiss this count on the grounds that the plaintiffs lack standing to sue for a violation of an inland wetlands permit. They argue that only the issuing agency--not an individual--has standing to sue to enforce a permit.
" If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . ."
" Two broad yet distinct categories of aggrievement exist, classical and statutory . . . the latter of which is implicated in the present case. [I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Citations omitted; internal quotation marks omitted.) Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 548-49, 133 A.3d 140 (2016).
In the present case, the issue is whether the abutting plaintiffs can bring an action for violations of a legally issued permit independently or as part of a cause of action based upon General Statutes § 22a-44(b). The statute, in relevant part, provides, " Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections 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 Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorneys fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action."
The plaintiffs are not challenging the permit itself or the process by which the permit was obtained.
The defendants argue that the plaintiffs do not have standing to sue for a violation of an inland wetlands permit and cite two cases: Lewis v. Planning & Zoning Commission, 275 Conn. 383, 394, 880 A.2d 865 (2005), and Committee to Save Guilford Shoreline v. Arrow Paving, Superior Court, judicial district of New Haven, Docket No. CV-06-4020284-S (Corradino, J., August 22, 2006) [41 Conn.L.Rptr. 864, ]. Neither case is, however, applicable here because neither alleged a violation of an issued permit and because both relied on the long standing principle that there is no standing under § 22a-16 to challenge the validity of permitting issues within the exclusive domain of the issuing agencies. See Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 34, 755 A.2d 860 (2000) (" [t]he plaintiffs, in the present case, cannot use § 22a-16 as an 'open sesame' to litigate environmental issues that are governed by [General Statutes] § 22a-430, and which clearly have been placed within the exclusive domain of the department"), overruled in part on other grounds by Waterbury v. Washington, 260 Conn. 506, 800 A.2d 1102 (2002).
In Windels v. Envtl. Prot. Comm'n, 284 Conn. 268, 276, 933 A.2d 256 (2007), the plaintiffs sued an abutting land owner seeking an order under General Statutes § § 22a-16, 22a-18 and 22a-44(b) enjoining the abutting land owner from performing work on its lots until the town defendants conducted an environmental review of the abutting land owner's modified development plans. Concluding that § 22a-44(b) affords a private right of action, the court held that the express language of the statute " recognizes that an action may be brought by '[a]ny person . . .'" Id., 297. The court continued, " Limiting IWWA enforcement actions to the commissioner of environmental protection, municipalities and districts would require us to read the phrase 'any person' out of the statute, contrary to the well established principle that [s]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . .' Indeed, although we agree with the trial court that the language of § 22a-44(b) is not as unequivocal as the language of § 22a-16 in granting 'any person' a private right of action, the trial court did not explain, and we cannot conceive, why § 22a-44(b) refers to an action brought by '[a]ny person' if not to acknowledge the right to bring such an action. Moreover, if no such right of action existed, there would be no recourse for persons, like the plaintiffs in the present case, who claim that a town inland wetlands commission has violated IWWA by declining to assert jurisdiction over a regulated activity. Such a result would be difficult to reconcile with the broad remedial policy underlying IWWA as set forth in General Statutes § 22a-36, especially in light of the express reference to an action brought by '[a]ny person' in § 22a-44(b)." (Citation omitted; footnote omitted.) Id., 297-98.
The court held that § 22a-44(b) " specifically authorizes actions against '[a]ny person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45 . . . including regulations adopted by the commissioner [of environmental protection] and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained . . .' (Emphasis added.) Thus, under the plain language of the statute, a defendant's failure to obtain a permit to conduct a regulated activity under General Statutes § 22a-42a(c)(1) can form the basis for a claim under § 22a-44(b)." (Emphasis in original; footnotes omitted.) Id., 301-02. Further, the court went on to hold that the plaintiffs specifically had standing because " the plaintiffs' interest in ensuring that [the abutting landowner] has obtained a permit for any regulated activities on the north lot that might affect the watercourse located partially on their property is within the scope of the interests that the private right of action under § 22a-44(b) was intended to protect. Indeed, if the plaintiffs did not have standing to bring a claim pursuant to § 22a-44(b) under these circumstances, it is difficult to imagine when they would have such standing. We conclude, therefore, that the plaintiffs are personally aggrieved by [the abutting landowner's] alleged failure to obtain a permit for a regulated activity, as [General Statutes] § 22a-42a(c)(1) requires." (Footnote omitted.) Id., 303.
In the present case, the plaintiffs allege in count two that the Grace defendants failed to comply with the conditions of the permit. The failure to comply with conditions is addressed in General Statutes § 22a-42a(d)(1) and is reflected in § 15.2 of New Canaan's inland wetlands and watercourses regulations. (See pleading #151.00, exhibit A, p. 39, and exhibit B, p. 40.) This is, therefore, " a violation of any provision of [General Statutes § § ]22a-36 to 22a-45, inclusive, including . . . regulations promulgated by municipalities . . ." General Statutes § 22a-44(b). Hence, § 22a-44(b) provides standing for these plaintiffs to bring this count.
Section 22a-42a(d)(1), in relevant part, provides: " No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application . . ."
Section 15.2 is the same in both sets of the regulations.
Furthermore, as abutting landowners, the plaintiffs have sufficiently alleged that they are personally aggrieved by the Grace defendants' failures to comply with the conditions and that these failures have adversely affected the plaintiffs' property and their use and enjoyment of it. See Windels v. Environmental Protection Commission, supra, 284 Conn. 303. Indeed, the plaintiffs' interest in insuring that the Grace defendants did not violate the conditions of the permit could not be greater given that the plaintiffs' property is downstream and that alleged discharges have occurred and continue to occur. See id. (" if the plaintiffs did not have standing to bring a claim pursuant to § 22a-44(b) under these circumstances, it is difficult to imagine when they would have such standing"). Therefore, the motion to dismiss count two is denied.
This court does not agree with the Grace defendants' argument that aggrieved plaintiffs do not have standing to enforce a permittee's failure to comply with a permit independent of a challenge to the permitting process. This action seeks relief, in part, for violations of the conditions of a permit, e.g., the duty to monitor or install proper erosion and sedimentation controls. In cases such as this, abutters with wetlands or watercourses may likely be impacted by failures to comply with conditions, but the interpretation of the Grace defendants leave the abutters waiting for actual damage before they may seek relief. Indeed, counsel for the Grace defendants asserted that violations of the permit could only be subsumed as part of a claim under § 22a-44(b) after actual degradation, i.e., evidence of the permit and the alleged violation would be admissible as part of the § 22a-44(b) claim.
C
Finally, all of the defendants move to dismiss the fifth count sounding in private nuisance on the grounds that it is precluded by the two-year statute of limitations of § 52-584. The statute, in relevant part, provides: " 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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." The defendants argue that the plaintiffs only allege negligent nuisance, and, therefore, § 52-584 applies to this case. See Sinotte v. Waterbury, 121 Conn.App. 420, 429, 995 A.2d 131 (" § 52-584 is the applicable statute of limitations barring negligence claims and nuisance claims arising out of negligence"), cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). The complaint alleges that the nuisance started in September of 2013, and this case was commenced on May 26, 2016, June 6, 2016, and June 7, 2016--dates beyond the two years.
The plaintiffs, on the other hand, argue that they allege the defendants committed an intentional act as opposed to a negligent act. For example, paragraph thirty-five of count five alleges that " the defendants intended the construction activity, including the disturbance of earth on their property and the importation of soil onto their site for use in construction . . ." Hence, they maintain that the three-year limitation of General Statutes § 52-577 applies to this nuisance action. See Pyskaty v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-12-6005514-S, (August 3, 2015, Fischer, J.) (" Nuisance is an action founded upon a tort . . . The applicable statute of limitations for nuisance actions is three years, pursuant to General Statutes § 52-577." [Citation omitted.]). 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." Recently, our Appellate Court has applied § 52-577 to a private nuisance counterclaim. Geiger v. Carey, 170 Conn.App. 459, 491-92, 154 A.3d 1093 (January 31, 2017) (holding that defendant's private nuisance counterclaim was time barred under § 52-577).
More importantly, it has long been our practice that a statute of limitations defense must be raised by a special defense and not by a motion to dismiss. Ross Realty Corporation v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972) (" [s]uch a defense must be specially pleaded and cannot be raised by a plea in abatement"). " Since a defense premised on § 52-584 does not implicate the court's subject matter jurisdiction, it is not properly raised by a motion to dismiss. A motion for summary judgment would be the appropriate pre-trial vehicle to raise the statute of limitations issue." Doolittle v. Stamford Hospital, Superior Court, judicial district of Stamford at Norwalk, Docket No. CV-06-5001214-S, (July 3, 2006, Jennings, J.). At the January 18, 2017 hearing, counsel argued about the verb " intended" and the interpretation of the various paragraphs of the complaint. That argument underscores why the statute of limitations is treated as a defense: it is fact bound. See French Putnam, LLC v. County Environmental Services, Inc., Superior Court, judicial district of Stamford, Docket No. CV-98-0166445-S (September 6, 2002, Adams, J.) [33 Conn.L.Rptr. 3, ] (" [i]n ruling on a motion to dismiss, a court should not decide issues of material fact, but only determine whether any such issues exist").
" [I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case . . . the fact finder must take into consideration all relevant factors . . . the fact finder deems relevant to the question of whether the interference is unreasonable . . . As to the intent element, [i]f the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable." (Citations omitted; emphasis added; internal quotation marks omitted.) Geiger v. Carey, supra, 170 Conn.App. 492 n.16.
Connected to this issue, the defendants also argue that the claim involves only one act, i.e., the defendants' alleged failure to install appropriate sedimentation and erosion controls in September of 2013. The plaintiffs argue that the nuisance is continuing because after September 2013, there were at least twelve occasions when the defendants caused sediment and silt to enter the plaintiffs' property. " Generally, whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied . . . If a nuisance is not abatable, it is considered permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. The statute of limitations begins to run against such a claim upon the creation of the nuisance once some portion of the harm becomes observable . . . A nuisance is deemed not abatable, even if possible to abate, if it is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely . . . However, a nuisance is not considered permanent if it is one which can and should be abated . . . In this situation, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm." (Citation omitted; internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 788, 73 A.3d 851 (2013).
In Rickel, the plaintiff-landowner sued the neighboring defendants for trespass and nuisance based upon bamboo encroaching on the plaintiff's land. Id., 777. The trial court rendered summary judgment for the defendants based upon the three-year statute of limitations as the plaintiff had discovered the harm in 2005, but not commenced the action until 2010. Id., 778. The plaintiff appealed asserting that the court had not addressed whether the nuisance and trespass were continuing. Id.
In reversing the trial court's decision, the Appellate Court held that the continuing growth of the bamboo and its rhizomes on the plaintiff's property was a genuine issue of material fact affecting whether the statutes of limitation were a bar to the trespass and nuisance counts. Id., 791. The court commented, " The complexity that commonly characterizes a nuisance claim is heightened when the issues raised by that claim are entangled with those raised by a trespass claim. The grafting together of these claims, when combined with the inquiry of whether such nuisances and trespasses are continuing or permanent, presents a knotty thicket of deeply factual issues that raise genuine issues of material fact and are inappropriate to decide on a motion for summary judgment." Id., 792.
Such is the case here. The inquiry of whether the nuisances and trespasses are continuing or permanent are factual issues. Id. Hence, resolution of this issue is best left for a later time when all facts can be considered.
It is noted that the defendants' motions to dismiss do not take issue with the trespass count in this matter.
Accordingly, the motions to dismiss are denied.
3. I am the President of Grace Farms Foundation and the President of the board of Grace Farms Foundation, Inc. (" GFF"), which is the fee owner of the property, and have held this position since 2009. 5. In or about 2007, GFF and its predecessor, Grace Property Holdings, LLC hired Paratus Group II (" Paratus") of New York City as the Owner's Representative and Project Manager to prepare, implement, and manage the design and construction of the Grace Farms project, which Paratus has done since 2007 to the present. Paratus specializes in managing complex real estate development projects. 6. Paratus was responsible for, among other things, the selection process and managing/supervising the architecture and site design team that created the Grace Farms site. Paratus was also responsible for negotiating contracts for the entire development team, including the construction manager, Sciame Construction, LLC, of New York, and McChord Engineering Associates, Inc., of Wilton, Connecticut, and for ensuring that the project was protected by insurance coverage for all contingencies. Officers and board members of GFF, including the undersigned, received, reviewed, provided input and approved design ideas and concepts advanced by the architects. GFF concentrated its efforts on creating the mission, designing the space, developing the programming and communicating the process of Grace Farms Foundation rather than managing the construction process. 7. Neither I nor any of the other GFF officers or directors were substantively or directly involved in the implementation of the Grace Farms design, nor did we supervise or control the construction or engineering activities involved in the development of Grace Farms. . . . 10. In my capacity as the President of GFF, I communicated with the Plaintiffs so that they were aware that their concerns were acknowledged and were being seriously addressed. I felt it was my duty, as president of GFF, the property owner, to acknowledge their communications. However, consistent both with my lack of specific expertise and with the contractual relationship between GFF and Sciame and others for its separate management of the construction effort, I had no role in prescribing the initial measures for addressing or preventing stormwater runoff or erosion at Grace Farms, nor was I involved in the evaluation of any alleged failures or the recommendations for repair/supplementation of these measures. Rather as required by GFF, as President of the Board of GFF, I relied on Paratus, Sciame, McChord Engineering, and the Town to evaluation the issues and ensure compliance. Prince also attached to her affidavit as exhibit 2 a copy of a September 18, 2013 email she sent to the plaintiffs and others. She, in relevant part, stated, " Thank you for sending this letter reviewing the run-off incident into your property as I just returned from traveling out of the country yesterday. In my absence, I was informed of an immediate and coordinated response to this incident. I am stepping into a construction meeting in a few minutes to review the root cause and current physical/construction remedies of this issue as well as to determine additional organizational and supervision measures moving forward to ensure that this will never occur again. We are taking this matter very seriously and will do our utmost to go above and beyond to make amends." This email is quoted in paragraph sixteen of the complaint and is at the heart of plaintiffs' allegations against her. On October 7, 2016, Prince filed additional affidavits of Jay Gorman, the senior project manager for Sciame Construction, LLC, and Holt McChord of McChord Engineering Associates, Inc. Gorman, in relevant part, states: 6. I know Sharon Prince from my work at Grace Farms as the president of Grace Farms Foundation, Inc. Ms. Prince had no role in the preparation of construction plans, or in prescribing appropriate measures for addressing or preventing storm water runoff or erosion on the site. 7. Whenever Ms. Prince or anyone at Grace Farms received any inquiry or complaint regarding the construction or storm water runoff, it normally would be referred to Sciame in order to investigate and respond to them as necessary. Additionally, McChord, in relevant part, states: 7. Sharon Prince did not accompany us on the weekly soil and erosion control field walks or play any role in our field report recommendations. In another affidavit filed by Prince on November 2, 2016, Roy Medile, the director of human resources of Grace Foundation, states, in relevant part: 13. Ms. Prince was made aware of complaints from neighbors in her capacity as President of GFF and did communicate with them on occasion. However, she did not direct the consultants and construction team in any response to these issues. Nor was she ever involved in any GFF business in her personal capacity. Specifically, neither she nor any GFF staff person was involved in the IWWA field report recommendations or implementing any engineering activities on the site, or any soil and erosion control measures.
In most cases, it is true that litigation is commenced after some harm has already occurred. Nevertheless, a complaint based upon the failure to comply with the conditions of a permit could arise after the issuance of the permit--before there was actual harm and when there was no reason to question the appropriateness of the permit. Abutters should not be limited to challenging only the initial permitting process as the Grace defendants argue. They should be able to seek to prevent the possible environmental harm that the conditions are presumably designed to protect and that could occur on their property if the permittee is not in compliance. See Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802-03, 925 A.2d 292 (2007) (" Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented" [internal quotation marks omitted]). The violation of a permit--which likely includes provisions to prevent environmental harm--is a violation of the inland wetland and watercourses statute to be enforced by the municipal agency or an aggrieved abutter under § 22a-44(b) (which is to be distinguished from a CEPA action under § 22a-16 or an administrative proceeding or appeal under § 22a-19).