Opinion
No. MMX CV08-5004937
February 5, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT/APPORTIONMENT DEFENDANT
The defendant/apportionment defendant, Town of Old Lyme ("Town"), has filed motions for summary judgment against the plaintiffs, Judith and Matthew Iovanna (Iovannas), and apportionment plaintiff, Angus McDonald/Gary Sharpe Associates (McDonald). Specifically, the Town seeks summary judgment in its favor on count three of the plaintiffs' revised amended complaint and on count one of the apportionment plaintiff's amended apportionment complaint on the basis that no issues of material fact are in dispute and, therefore, the Town is entitled to judgment as a matter of law.
The basis for each of the motions are the same. The Town seeks summary judgment because the plaintiffs and apportionment plaintiff failed to cite a statute in their complaints that would abrogate governmental immunity; the Town owed no duty to the plaintiffs/apportionment plaintiff; the Town has governmental immunity with regard to the negligence claim because any duty owned was discretionary and that the plaintiffs/apportionment plaintiff have failed to allege sufficient facts to make them fall within the "reckless disregard for health and safety" exception of General Statutes § 52-557n(b)(7), nor can the plaintiffs replead such facts. It is noted that the Town withdrew its claim that the plaintiffs and apportionment plaintiffs failed to cite a statute in their complaints at the time of oral argument and, therefore, that claim will not be addressed by the court.
By way of background, the defendant/apportionment plaintiff, McDonald, provided surveying services to the plaintiffs, the Iovannas, in connection with the construction of a home at 28 Lone Pine Trail in Old Lyme, Connecticut. The plaintiffs allege that McDonald was negligent in its performance of the surveying services and the preparation of survey drawings to be used by the plaintiff to obtain a zoning permit for the project. Specifically, they allege that McDonald breached its contract by failing to accurately determine the proper set back for the plaintiff's property and prepared surveys that did not contain the proper setback for the location of proposed house. The surveys were submitted to the town zoning enforcement officer. The survey drawings prepared by McDonald showed the setback as 25 feet from the road when it should have been 35 feet. The Town issued a zoning permit to the plaintiffs and as a result, the plaintiffs began construction of the home. Upon learning of the error in the setback, the Town issued a cease and desist order.
In its memorandum of law, the Town admits that the approval by the zoning officer of the permit application was done in error. The Town contends that the zoning officer had no notice of the error in the survey drawings until it received complaints from neighboring landowners. The zoning officer attests, by way of affidavit, that she did not note the error because she erroneously assumed that Lone Pine Trail was a private road and that private roads are not subject to the additional setback requirement. As a result, she issued the zoning permit even though the location of the home was in violation of the Town's zoning regulations.
The Iovannas commenced a lawsuit against McDonald. Thereafter, McDonald filed an apportionment complaint against the Town. The Iovannas then filed an amended complaint incorporating the same claim. As such, both count one of the apportionment complaint and count three of the Iovannas' complaint allege that the Town, its agents, servants, and/or employees were negligent in the performance of one or more of its ministerial duties in connection with approving the zoning permit for the plaintiffs' property.
The defendant/apportionment defendant Town argues in both of its motions for summary judgment that the zoning enforcement officer used her discretion during the zoning permit application process, and provides her affidavit in support of its position. Furthermore, the Town argues that regulation 51.5 of its zoning regulations is consistent with the principles of Connecticut law because it prescribes that when a zoning permit application and accompanying plans are in compliance, the approval of a permit is a ministerial function. Despite this, the Town contends that even though the zoning enforcement officer issued the zoning permit, she, in fact, retained her discretion to either discuss that error with the plaintiffs and have them fix it or deny the zoning permit. For these reasons, they argue, her issuance of the zoning permit was not a negligent ministerial act, but was, instead, an honest failure to exercise her discretion correctly based upon incorrect information provided by the plaintiffs.
Section 51.5 of the Town of Old Lyme's zoning regulations provides in relevant part: " Approval and Issuance: The Zoning Enforcement Officer shall issue a ZONING PERMIT to authorize the construction, reconstruction, extension, moving or alteration of a building, other structure or site development and shall issue a CERTIFICATE OF ZONING COMPLIANCE for the use or occupancy of land, buildings, other structures, or site development when such Officer determines that all of the requirements of these Regulations have been met . . ."
In its objection to the Town's motion for summary judgment, the defendant/apportionment plaintiff, McDonald, argues that questions of material fact exist as to whether the defendant Town was performing a ministerial or discretionary act because the application submitted by the plaintiffs contained an error in the setback that violated the Town's zoning regulations, specifically those regarding setbacks for narrow roads as provided in section 7.4.2 of the regulations. McDonald also argues that the language of section 51.5 of the zoning regulations is clear that a zoning officer cannot use her discretion to approve a permit if the application contains a violation. Specifically, McDonald argues that if, as the Town contends, the mandate of Section 51.5 of the regulations is clear that if an application complies with the regulations, a permit must be issued, the converse must also be true. In other words, if the application does not conform to the regulations, it cannot be issued.
Section 7.4.2 of the Town of Old Lyme's zoning regulations provides: " Narrow Streets: The required setback from a street line of a town road or state highway having a width of less than 50 feet shall be increased by one half of the difference between 50 feet and the actual width of the street."
The plaintiffs/apportionment plaintiff also object to the Town's motion for summary judgment by contending that material issues of fact exist because the application submitted contained an error in the setback that violated the Town's zoning regulations, and that the zoning enforcement officer's affidavit acknowledges that it was her "official duty" to enforce the zoning regulations, which would, therefore, include the setback requirements. They further argue that the regulations mandate that the zoning officer cannot use her discretion to approve a permit if the application contains a violation.
It has generally been held that "a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted.) Martel v. Metropolitan District Commission, CT Page 4566 275 Conn. 38, 47, 48-49, 881 A.2d 194 (2005).
In Segreto v. Bristol, 71 Conn.App. 844, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002), the Appellate Court noted that the trial court previously determined that it was apparent "that the negligent acts of the city alleged in the complaint were discretionary in nature, rather than ministerial, because the complaint contained no allegation that the city or its employees were required to design or maintain the stairway where the plaintiff fell in a prescribed manner and failed to do so." Id., 855. The Appellate Court then went on to affirm the trial court's granting of summary judgment in favor of the defendants because the "complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply. Additionally . . . the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." Id., 857.
In the present case, the plaintiffs/apportionment plaintiff have essentially alleged that the Town, through its employees, was negligent in its ministerial duty to review and deny a zoning permit application containing errors, thereby creating a violation of the zoning regulation that specify the area of the setback required. Although the Town has provided the affidavit of zoning enforcement officer Brown stating that she has discretion to "discuss with the applicant and have him/her correct the deficiencies, or . . . reject or deny the zoning permit application" (emphasis added), it does not state that zoning officers have discretion to approve a zoning application that contains an error and thereby also approve a zoning violation. The zoning enforcement officer's affidavit does not show that she had the plaintiffs correct the setback error or that she rejected their application, which under the evidence provided to the court, were the only actions within her discretion to take. Moreover, her affidavit does not state that there are no policies or directives in existence that address the manner in which a zoning enforcement officer reviews zoning permit applications that would leave it to the officer's discretion whether to check the accuracy of the zoning application.
Both the Iovannas' complaint and McDonald's apportionment complaint specifically allege that the Town, through its agents/servants and/or employees, was negligent in the following ways:
a. IN THAT it issued a zoning permit to the plaintiffs for construction of their home despite the fact that the survey drawings that were submitted in support of the application contained an error in the calculation of the setback of the plaintiffs' home under the Old Lyme zoning regulations.
b. IN THAT it failed to deny a zoning permit to the plaintiffs despite being put on notice of a zoning violation in the survey drawings submitted with the application which contained an error in the calculation of the setback; and,
c. IN THAT despite actual or constructive knowledge of the zoning violations contained in the survey drawings submitted by the plaintiffs in support of their application for a zoning permit, it was negligent in performing the ministerial act of reviewing and denying the zoning permit to the plaintiffs.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Accordingly, the court finds that the defendant has failed to meet its initial burden of showing the absence of any genuine issue as to whether the Town had some policy or directive in place regarding those duties with which it or its employees had failed to comply.
Although the Town cites to Morrell v. Jane Lane, LLC, Superior Court, judicial district of Danbury, Docket No. CV 05 4003062S (September 19, 2006, Thim, J.) as being a factually analogous case, the court finds it distinguishable. In Morrell, the court held that "[u]nder the health code, [the director of health for the town] was required to exercise his judgment when issuing the permits." Id. In the present case, however, zoning regulation 7.4.2 specifically provides for the streetline setback of narrow roads, which the zoning enforcement officer, as per her affidavit, has a duty to enforce. The court is reluctant to find as a matter of law that the zoning enforcement officer had discretion in enforcing section 7.4.2 of the zoning regulations because the language of that regulation makes the minimum area of the streetline setback directly dependent upon the actual size of the street, and thus an objective determination. Assuming, arguendo, that the defendant had met its initial burden by showing the absence of any genuine issue of fact, the objecting parties have provided evidence that demonstrates a factual dispute as to whether the duty to the plaintiffs was discretionary.
Absent any evidence showing that it was left to the discretion of the zoning enforcement officer to check the accuracy of the maps and application presented to her, or that otherwise no policies or directives existed as to the manner in which zoning enforcement officers review applications, the defendant Town's motions are denied with respect to the discretionary/ministerial ground for summary judgment.
The Town further contends that its motion for summary judgment should be granted because it did not owe a legal duty to the plaintiffs. In support of this conclusion the Town directs the court to the application for the zoning permit signed by the plaintiff Matthew Iovanna as evidence that the plaintiff took the duty on himself to provide accurate information to the Town. The Town also contends that the question of whether a defendant owes a duty of care is a question of law and that the enforcement of zoning regulations has been held to be a discretionary function by numerous courts. In opposition, the plaintiffs and McDonald argue that the issue of whether a duty exists cannot be separated from the issue of whether the alleged act was discretionary or ministerial.
The Zoning Compliance Permit Application states: "By signing this application, the applicant acknowledges that he understands that it is the applicant's responsibility to conform to the Town of Old Lyme's Zoning Regulations and that if the information here provided proves to be false, incomplete, and/or inaccurate, the permit will be revoked."
It has been held that "the existence of a duty of care and the availability of an exception to municipal immunity are synonymous issues." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 50136020 (March 30, 2009, Holden, J.), citing Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "The [Supreme Court] in Doe v. Petersen, [ supra, 613,] explicitly said that "[t]he issue of governmental immunity is simply a question of the existence of a duty of care and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law.'" Doe v. Clinton Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 04 0490216 (February 10, 2009, Corradino, J.). However, "[t]he court in Mulligan v. Rioux, 229 Conn. 716, 736,[ 643 A.2d 1226] (1994), stated that: `Although the ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court, when, as in this case there are unresolved factual issues material to the applicability of the defense preventing its early disposition, resolution of those factual issues is properly left to the jury.'" (Emphasis in original.) Doe v. Clinton Board of Education, supra, Superior Court, Docket No. CV 04 0490216.
As this court has already noted, supra, questions of fact are still left unresolved as to whether the duty owed to the plaintiffs was discretionary or ministerial. In their complaint, the plaintiffs allege a ministerial duty was owed to them, and the Town has not shown that this duty to enforce zoning regulation 7.4.2 was otherwise discretionary. See Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008) (a duty of care may arise from a statute).
The Town also submits that the plaintiffs' and McDonald's claims are legally insufficient because they fail to allege, and cannot replead, an exception to governmental immunity as set forth in General Statutes § 52-557n(b)(7). Specifically, the Town argues that both complaints fail to allege that the zoning enforcement officer's failure to deny the zoning permit constituted a "reckless disregard for health and safety" as required by the statute. The plaintiffs and McDonald argue that it is not their position that the zoning enforcement officer's approval of the permit constituted a "reckless disregard for health and safety." Rather, they argue that the Town's argument ignores the other elements of § 52-557n(b)(7), namely that before a court may consider whether the conduct alleged constituted a "reckless disregard for health and safety," the court must first determine that the alleged duty owed to the plaintiff was a "discretionary function by law." In other words, it is unnecessary to consider whether the alleged conduct falls within the "reckless disregard for health or safety" exception until it has first been determined that the duty owed to the plaintiff was discretionary. As previously noted, supra, the plaintiffs and McDonald have alleged that the zoning enforcement officer's approval was a ministerial act rather than a discretionary function, and the Town has yet to establish anything to the contrary. Therefore, the Town's motion for summary judgment as to this ground is also denied.
General Statutes § 52-557n(b) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . ."
Accordingly, the Town's motions for summary judgment are denied.