Opinion
No. CV 05-4002878-S
July 10, 2006
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff James M. Munch has filed suit for money damages against defendants, Town of Sherman (town) and Sherman Zoning Board of Appeals (board) claiming irregularties in the defendants' handling of a zoning dispute. The defendants move for summary judgment, primarily on the ground that the appropriate remedy for the plaintiff's grievances is an administrative appeal to the superior court. For the following reasons, the court grants the motion in part and denies the motion in part.
I
The undisputed facts are as follows. The plaintiff leased farm land in Sherman, where he sought to conduct log sorting and firewood operations. The plaintiff had numerous conversations in 2004 with Ernest Winkler, the town zoning enforcement officer, concerning the plaintiff's plans to conduct these operations in an area zoned for farming. Winkler ultimately referred the matter to the town planning and zoning commission (commission) for a determination of the validity of these operations under the town's zoning code. On August 5, 2004, the commission issued a "statement of intent" and a permit to conduct logging operations under certain conditions.
Several neighbors filed an appeal to the board. At a September 14, 2004 public hearing, the board upheld the appeal, effectively rendering the plaintiff's operations an invalid use of the property. Neither the plaintiff nor any other party filed an administrative appeal to the Superior Court.
II
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). "Correspondingly, the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) United Services Automobile Association v. Marburg, 46 Conn.App. 99, 110, 698 A.2d 914 (1997). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movants affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 430. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § 17-46; see also United Services Automobile Ass'n. v. Marburg, supra, 110.
Practice Book § 17-45 provides in part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Practice Book § 17-46 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 431.
III
It is readily apparent that most of the six counts of the plaintiff's complaint do not state viable causes of action. The gravamen of count one is that the defendants acted illegally and abusively in overturning the decision of the commission. The plaintiff, however, fails to cite any authority, and the court is not aware of any, for obtaining money damages from a municipality on the naked theory that its zoning officials acted illegally or abusively. If indeed the defendants acted illegally and in abuse of their discretion, then the usual remedy is an administrative appeal to the superior court. See Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). The defendants agree that, even though the plaintiff is a lessee, he would have had standing to take such an appeal. See Primerica v. Planning Zoning Commission, 211 Conn. 85, 92-95, 558 A.2d 646 (1989) When, as here, "a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." (Internal quotation marks omitted.) Gelinas v. West Hartford, 225 Conn. 575, 595, 626 A.2d 259 (1993). Accordingly, the defendants are entitled to judgment as a matter of law on count one.
Count two alleges simple negligence and count five alleges negligent infliction of emotional harm. The plaintiff, however, fails to establish that the defendants owed the plaintiff any particular duty to decide the zoning issue in his favor. Without such a duty, a negligence action must fail. See Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). Further, the alleged negligent actions of the zoning and other town officials in this case are discretionary rather than ministerial functions, thus entitling the town to immunity under General Statutes § 52-557n(a)(2)(B). See DeConti v. McGlone, 88 Conn.App. 270, 273, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005); Duffy v. Wallingford, 49 Conn.Sup. 109, 116-18, 862 A.2d 890 (2004). Finally, since the effect of the board's action in upholding the appeal was to deny the plaintiff a permit to conduct his operations, any negligence claims of the plaintiff against the town and its agents arising from the board's action are barred by General Statutes § 52-557n(b)(7).
General Statutes § 52-557n(a) provides:
(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
The plaintiff improperly relies on exceptions to immunity that apply when the plaintiff sues a municipal employee, which the plaintiff here has not done. See Deconti v. McGlone, supra, 88 Conn.App. 272.
Section 52-557n(b)(7) provides as follows:
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 . . .
The fourth count charges the defendants with intentional infliction of emotional distress. Our Supreme Court held in Pane v. Danbury, 267 Conn. 669, 684-86, 841 A.2d 684 (2004), that section (a)(2)(A) of the same statute grants a town immunity from an action for this tort. Further, the allegations of actions by the defendants, even if improperly motivated, that caused primarily economic harm to the plaintiff do not amount to the type of extreme and outrageous behavior that is an essential element of this tort under Connecticut law. See Appleton v. Board of Education, 254 Conn. 205, 210-12, 757 A.2d 1059 (2000). See also Franco v. Yale University, 161 F.Sup.2d 133, 141-42 (D.Conn. 2001) (medical school's conduct disenfranchising surgeon); Brown v. Northeast Nuclear Energy Co., 118 F.Sup.2d 217, 222-23 (D.Conn. 2000) (nuclear power plant's alleged failure to follow its own internal procedures before revoking security clearance of subcontractor's employee). Accordingly, the court grants the motion for summary judgment on count four.
The plaintiff disingenuously fails to acknowledge this binding case law in his opposition brief.
The sixth count alleges a conspiracy among various town employees. This claim is barred by the intracorporate conspiracy doctrine, which provides that employees of a corporation acting within the scope of their employment cannot conspire with one another or with their corporate employer. See Harp v. King, 266 Conn. 747, 781-82, 835 A.2d 953 (2003). This doctrine extends fully to municipalities and their employees. See Rini v. Zwirn, 886 F.Sup. 270, 291-92 (E.D.N.Y. 1995). Therefore, the plaintiff cannot prevail on count six.
IV
The plaintiff entitles count three as "detrimental reliance — promissory estoppel." He alleges that, relying on the representations of town officials, especially Winkler, and others, such as the state commissioner of agriculture, that the plaintiff's logging business was a permissible use of the property, the plaintiff moved forward with this business at considerable expense, only to be halted by the later decision of the board.
The essential elements of a claim for promissory estoppel are: "the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268, 690 A.2d 368 (1997). Furthermore,
[i]t is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge . . . In addition, estoppel against a public agency is limited and may be invoked: 1) only with great caution; 2) only when the action in question has been induced by an agent having authority in such matters; and 3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.
(Citations omitted; internal quotation marks omitted.) Id., 268-69.
The defendants claim that an additional element is the existence of a "clear and definite promise." The Appellate Court has indeed identified this requirement as part of an action for promissory estoppel against an agency. See Torringford Farms Ass'n., Inc. v. Torrington, 75 Conn.App. 570, 575-76 n. 8, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003). The Supreme Court, however, has not done so. See Chotkowski v. State, supra, 240 Conn. 268-69. The "clear and definite promise" requirement, in any event, seems closely linked to the first element stated above of whether the defendant has done or said something calculated or intended to induce another party to believe that certain facts exist.
The defendants also refer to the plaintiff's cause of action as seeking "municipal estoppel." This phrase may be an alternative way of identifying an action for promissory estoppel against a municipality. In most of the cases, however, the object of what is called "municipal estoppel" is injunctive relief, rather than money damages. See Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 634-36, 646 A.2d 772 (1994). Here the plaintiff's seek only monetary damages. Although the plaintiff cites no precedent for obtaining money damages from a municipality on a promissory estoppel theory, the defendants do not invoke municipal immunity on this count or present any other reason why, in principle, a party cannot sue a municipality for damages on this theory. See Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 420, 722 A.2d 271 (1999) (Berdon, J., dissenting).
In the present case, the defendants have filed an affidavit of Winkler in which he avers that at no time did he state to the plaintiff that his proposed log-sorting and firewood operation was a permissible use of the subject property. The plaintiff, however, has submitted an affidavit in which he states that Winkler regularly assured him that his proposed operation was permissible. The plaintiff adds that, on the strength of this advice and other information, he began to incur significant capital expenses, including the purchase of a self-loading logging truck. Thus, a fact issue obviously exists concerning whether an agent of the defendants said something calculated to induce reasonable reliance and expense by the plaintiff.
The defendants also argue that, under town zoning regulations, Winkler had no authority to permit the plaintiff to conduct log-sorting and firewood operations on the subject property and that any permission he might have given would have been null and void. See Sherman Zoning Regs., § 400. This argument, however, misses the real questions, under the test stated above, of whether Winkler's alleged grant of permission was within the scope of his authority, even if the board ultimately disagreed with his position on the substantive zoning issues, and whether the plaintiff exercised due diligence and lacked any contrary knowledge in relying on Winkler's claimed grant of permission. The defendants do not address these issues, which therefore must be reserved for trial. See, e.g., General Statutes § 8-6(a)(1) (zoning board or appeals has power to hear and decide appeals claiming error "in any order, requirement or decision made by the official charged with the enforcement of [town zoning regulations] . . ."
As stated, a party may invoke promissory estoppel against a municipality "only with great caution . . . and . . . only when special circumstances make it highly inequitable or oppressive not to estop the agency." Chotkowski v. State, supra, 240 Conn. 268-69. There are numerous unresolved questions as to whether the plaintiff can meet this stringent burden of proof. In addition to those noted in the previous paragraph, the plaintiff may have to show that his reliance stemmed from the advice of an agent of the defendants, and not from a nonparty, and that he incurred damages before the matter went to the commission, when it then became more foreseeable that the matter was subject to further review and possible reversal by the board. Again, however, the defendants do not address these issues, and the court must therefore reserve them for trial.
V
The court grants the summary judgment motion as to counts one, two, four, five, and six, and denies the motion as to count three.
It is so ordered.