Opinion
DBDCV196030546S
09-20-2019
Marlon PEREIRA v. Edward BRIGGS et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
Defendant Edward Briggs ("defendant Briggs"), filed a motion to strike dated July 19, 2019, and memorandum of law in support of motion to strike of same date, pursuant to Practice Book § 10-39, to strike the first and second counts of the plaintiff Marlon Pereira’s ("plaintiff") amended complaint ("amended complaint") dated June 20, 2019 on the ground that they are legally insufficient as a matter of law. More specifically, the first count is legally insufficient because the issuance of a cease and desist order or other enforcement action by defendant, a municipal health director, is discretionary as a matter of law, and the plaintiff has not established a clear legal right to enforcement action, and has not established the absence of a remedy at law; and in the second count the plaintiff fails to sufficiently allege private nuisance because the amended complaint does not allege that defendant owned or controlled any property to the extent that it would constitute sufficient control to render him liable in nuisance, and the amended complaint does not allege a "positive act" that would render a municipal official liable for nuisance. For these reasons, defendant moves that the court strike the first and second counts of the amended complaint.
The plaintiff, pursuant to Practice Book § 10-40, opposes the defendant’s motion to strike, by way of a memorandum of law in opposition to defendant Briggs’ motion to strike dated August 16, 2019, asserting that the amended complaint supports plaintiff’s claims for a writ of mandamus and private nuisance both of which are properly pled and which should not be prematurely decided by this Motion. Plaintiff claims that questions of fact relevant to this claim against defendant Briggs exist which are clearly not to be decided on a motion to strike. Plaintiff claims that the complaint properly alleges a private nuisance claim arising from defendant Briggs’s conduct by refusing to act to correct an illegal well installed by defendant Giacomo Parascondola ("defendant Parascondola") despite his mandatory duty to act pursuant to specific regulations, which conduct defendant Briggs is alleged to know would and/or has caused unreasonable interference with the plaintiff’s use and enjoyment of his property. The allegations imply that defendant Briggs’s interference was intentional and/or the result of his negligent job performance. The court should deny defendant Briggs’s motion to strike because factual questions exist which preclude striking the mandamus and private nuisance counts against defendant Briggs.
The defendant Briggs, in response to the plaintiff’s memorandum of law in opposition to defendant Brigg’s motion to strike the plaintiff’s memorandum, filed a reply to plaintiff’s opposition to motion to strike dated September 6, 2019. Defendant Briggs claims that the plaintiff fails to refute the key flaw in plaintiff’s claim: the decision of whether to take enforcement action is discretionary as a matter of law. A writ of mandamus cannot compel defendant Briggs to take enforcement action any more than it can compel a local police officer to make an arrest. Nor can defendant Briggs be held liable in nuisance for the alleged failure to take enforcement action to ameliorate an alleged condition that neither he nor the Town created. Therefore, the motion to strike should be granted by the court.
FACTS
The plaintiff alleges that defendant Briggs is the Health Director of the Town of Ridgefield, and is charged with the responsibility and duty to enforce the Public Health Code. The plaintiff owns 29 Lakeview Drive ("plaintiff’s property"), and defendant Parascondola owns an abutting property on 1 Lookout Drive ("neighboring property"). Defendant Parascondola’s predecessor in title installed a private well ("well") without obtaining a permit. Defendant Parascondola disconnected and abandoned the well and connected to public water, then in 2012 disconnected from public water and connected to the well. Plaintiff further alleges that defendant Parascondola did not obtain a permit from the state, or defendant Briggs, for to disconnect from public water and reconnect to the well, and could not have obtained a permit because he did not comply with Regulations of Connecticut State Agencies 19-13-B51m(b)(1). The plaintiff does not live at plaintiff’s property. In or about July 2016, plaintiff commenced work on the plaintiff’s property with the intention to fully renovate the home, including the installation of a new septic system and expansion of the living space. The plaintiff is unable to renovate plaintiff’s property because of state requirements regarding the location of a well in relation to a proposed septic system. The plaintiff further alleges that defendant Briggs’ inaction constitutes a private nuisance. The plaintiff also alleges a private nuisance against defendant Parascondola, requesting injunctive relief and monetary damages.
LEGAL STANDARD
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916 (2005).
A writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well established limits. Raslavasky v. Moore, 167 Conn. 363, 376, 355 A.2d 273 (1974). The plaintiff has filed this action as a writ of mandamus. "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no adequate legal remedy. Milford Education Assn. v. Board of Education, 167 Conn. 513, 356 A.2d 109, citing State v. New Haven Northampton Co., 45 Conn. 331 (1877). Thus, the use of mandamus "is justified only when necessary to supplement the deficiencies of ordinary legal processes and when the aggrieved party has no adequate remedy either at law or equity." Milford Education Assn. v. Board of Education, Id. 356. A writ may issue if the plaintiff can demonstrate a clear legal right to compel the performance of a purely ministerial act and when the plaintiff is without other adequate remedies. Andrews v. New Haven, 153 Conn. 156, 159, 125 A.2d 102 (1965).
The law applicable to private nuisance is fairly straight forward. To prevail in an action for a private nuisance, a plaintiff must establish 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." Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002). "A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967). The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. Nailor v. C.W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). The essence of a private nuisance is an interference with the use and enjoyment of land. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 87, p. 619." (Internal quotation marks omitted.) Pestey v. Cushman, supra 259 Conn. 352. "[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." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 327 Conn. 53, 63 n.7, 171 A.3d 409 (2017), citing Pestey v. Cushman, supra, 259 Conn. 361.
DEFENDANT’S POSITION
"Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law ... That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks ... The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). "[T]t is axiomatic that [t]he duty [that a writ of mandamus] compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary ... Consequently, a writ of mandamus will lie only to direct performance of a ministerial act which requires no exercise of a public officer’s judgment or discretion ..." (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 422, 853 A.2d 497 (2004). In Greenfield v. Reynolds, the Appellate Court held that the power to enforce zoning regulations is clearly discretionary, and therefore the trial court properly struck a complaint seeking a mandamus against the town zoning enforcement officer to compel him to enforce town regulations. 122 Conn.App. 465, 471-72, 1 A.3d 125 (2010). The plaintiff in Greenfield was upset with the lack of enforcement against his neighbor. The Appellate Court reasoned that "the enforcement of zoning regulations ... is to be performed wholly for the direct benefit of the public and not in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action ... is a discretionary and not ministerial act and, therefore, not amenable to mandamus relief." Id. at 472-73. Judges of the Superior Court routinely grant motions to strike in analogous cases. The Plaintiff asks this Court to order defendant Briggs to issue a cease and desist order or take other discretionary enforcement action. Similar to a zoning enforcement officer, a municipal health director’s enforcement powers are discretionary as a matter of law. The plaintiff cannot establish a non-discretionary duty to enforce local health regulations, and has therefore failed to sufficiently allege a right to a mandamus.
"[M]andamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). The Plaintiff has not cited any law or regulation providing him a clear, complete and immediate right to the issuance of a cease and desist order, nor a clear, complete and immediate legal duty to issue one or take other enforcement action. Plaintiff relies on Regulations § 19-13-B51m(b)(1), which provides: "No water supply well permit shall be given by the director of health ... when a community water supply system ... is deemed available ..." This does not compel defendant Briggs to do anything, it prohibits defendant Briggs from issuing a permit in certain circumstances. The amended complaint does not allege that defendant Briggs illegally issued a permit; it specifically alleges that he did not and could not obtain such a permit, but it alleges that defendant Briggs failed to comply with General Statutes § 19a-36(d). That statute likewise does not mandate any particular action, but only indicates under what circumstances a local director of health "may" approve certain wells. The Well Drilling Code Regulations § 25-128-34 et seq., also does not help the plaintiff. The Amended Complaint does not cite any specific regulations imposing any mandatory duties on defendant Briggs, nor giving any clear legal rights to the plaintiff.
The Connecticut Supreme Court has explicitly stated that "[a]ny person specifically and materially damaged by a violation of the zoning ordinances ... which has occurred ... on another’s land may seek injunctive relief restraining such violation." Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981). The third count of the amended complaint seeks such injunctive relief. Accordingly, the plaintiff cannot establish the absence of another legal remedy as a matter of law. Greenfield v. Reynolds, Superior Court, Docket No. CV 074023026S, 2008 WL 5219889, at *5 (November 18, 2008) ("The plaintiffs may bring a private enforcement action and seek injunctive relief ... In these cases, the Supreme Court found that the plaintiff’s proper recourse was to commence a cause of action seeking to enjoin the landowner who is violating the town’s zoning regulations ... This would be the proper course of action rather than this court granting the extraordinary remedy of a writ of mandamus"), aff’d, 122 Conn.App. 465, 1 A.3d. 125 (2010).
"[The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages ... when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). "[F]ailure to remedy a condition not of the municipality’s own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).
"The proper focus of a private nuisance claim ... is whether a defendant’s conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff’s use and enjoyment of his or her property ... 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." Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002). In determining "when a defendant’s connection to a particular parcel of property suffices to make it an unreasonable or unlawful ‘user’ of that property ... our cases frequently have applied a functional test ... A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance." State v. Tipetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183-84, 527 A.2d 688 (1987). In Tebbets v. Oliver Group, No. CV 095013052, 2010 WL 3172376 (July 14, 2010), the plaintiffs brought a private nuisance claims against a zoning enforcement officer for his alleged failure to enforce zoning regulations. The court granted the defendant’s motion to strike the nuisance counts. The court reasoned that "[t]he plaintiffs have failed to provide any legal authority for the proposition that zoning enforcement power constitutes control for purposes of establishing a private nuisance claim," and therefore struck the private nuisance claim. Id. at *6. The court also noted that "the plaintiffs failed to sufficiently allege a ‘positive act’ taken by the municipality which would render one of its officials liable for nuisance, as the mere granting of a permit is not sufficient to demonstrate a positive act." Tebbets v. Oliver Group, Superior Court, Docket No. CV 095013052, 2010 WL 3172376, at **5-6 (July 14, 2010).
The amended complaint does not allege that defendant Briggs owned or controlled any property to the extent that it would constitute sufficient control to render him liable in nuisance. It does not allege a "positive act" that would render a municipal official so liable, even in a claim for public nuisance. Rather, the amended complaint claims the plaintiff was harmed by inaction, which is insufficient to render him subject to a nuisance claim as a matter of law.
In response to the plaintiff’s memorandum of law in opposition to defendant Brigg’s motion to strike the plaintiff’s memorandum, the defendant Briggs filed a reply to plaintiff’s opposition to motion to strike. Defendant Briggs claims that the plaintiff fails to refute the key flaw in plaintiff’s claim: the decision of whether to take enforcement action is discretionary as a matter of law. A writ of mandamus cannot compel defendant Briggs to take enforcement action any more than it can compel a local police officer to make an arrest. Nor can defendant Briggs be held liable in nuisance for the alleged failure to take enforcement action to ameliorate an alleged condition that neither he nor the Town created. Plaintiff has not cited any authority supporting the proposition that enforcement action can be compelled by mandamus; cases granting mandamuses to compel other actions are irrelevant. Actions seeking to compel officials to take enforcement action routinely fail, as enforcement action is inherently discretionary. "For purposes of determining whether a duty is discretionary or ministerial ... [t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." Northrup v. Witkowski, 332 Conn. 158, 169, 210 A.3d 29 (2019). "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment [or discretion] upon the propriety of the act being done." Id.
General Statutes § 19a-206, which sets forth the general authority and duties of town health directors, is a classic example of a law that imposes general duties on officials, but does not mandate a particular response to specific conditions. See Northrup at 169. The Plaintiff has not identified any law requiring any particular enforcement action- even assuming the existence of some violation (which defendant Briggs does not concede). The Supreme Court has held that as a matter of law, "the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts." Id. The plaintiff seeks a mandamus compelling Defendant Briggs to (1) "comply with the permitting process and other mandatory regulation related to the repair of the private well in 2012 at the Neighboring Premises," and (2) to "issue defendant Parascondola a cease and desist." It is unclear how the first request would help the plaintiff even if the court were to order it, since it does not specify what defendant Briggs would be required to do. The plaintiff has failed to point to any particular "permitting process" or "mandatory regulation" which requires defendant Briggs to do anything. The mere conclusory pleading of a discretionary duty is insufficient, even on a motion to strike. See Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985) (motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" [emphasis in original]). There is no meaningful distinction between zoning enforcement officers and local directors of health. All have general obligations to enforce the law within in the scope of their respective jurisdictions, but absent a specific law compelling them to take particular enforcement action in specific circumstances, mandamus does not lie.
The Plaintiff does not dispute the positive act element in a nuisance claim against a municipality, and has failed to allege any such act. Plaintiff’s attempted characterization of "accepting and/or condoning" the subject well by "refusing to act" falls well short of this requirement. Here, not even arguably positive act is alleged. Accordingly, the plaintiff has failed to allege the "positive act" element as a matter of law. Plaintiff is incorrect that some degree of control over the relevant property is not required to adequately plead nuisance. Pestey v. Cushman, cited by the Plaintiff, provides that "[t]he proper focus of a private nuisance claim for damages ... is whether a defendant’s conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff’s use and enjoyment of his or her property." Pestey at 360. The plaintiff does not allege that defendant Briggs "used" any property, but merely asserts that defendant Briggs failed to restrict the use of defendant Parascondola’s property. This is insufficient to plead private nuisance. For the foregoing reasons, the court should grant the motion to strike in its entirety.
PLAINTIFF’S POSITION
Common law has further clarified that a writ of mandamus is proper when: "(1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy ... In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity ..." Cook-Littman v. Bd. of Selectmen, 328 Conn. 758, 768 n.9, 184 A.3d 253 (2018). The Supreme Court has stated that in cases against municipal defendants, "to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion." Ventura v. Town of East Haven, 330 Conn. 613, 631, 199 A.3d. 1 (2019).
Cases cited by defendant Briggs in his favor are distinguishable from plaintiff’s case. For example, Greenfield v. Reynolds, 122 Conn.App. 465, 471-72, 1 A.3d 125 (2010), by its own language is limited to cases involving zoning: "it is clear that the power to enforce zoning regulations conferred by § 8-12 on town officials is discretionary." Id. at 471-72. By contrast here, the plaintiff alleges that defendant Briggs has refused to perform his job as town Director of Public Health since approximately 2012, when the defendant Parascondola performed construction related to his private well which required the defendant Briggs’ approval and compliance with the highly regulated well construction and related statutes and regulations.
Connecticut courts have analyzed the issue of a public health official’s duty: "Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. Mandamus will lie where the exercise of discretion is such that there has been a clear error of judgment in the conclusion reached upon a weighing of the relevant factors." Timko v. Chotkowski, 26 Conn.Supp. 266, 271-72, 220 A.2d 286 (1966). In Timko, a Superior Court entered mandamus against the town director of health, requiring him to issue a statement that the plaintiff landowner’s proposed septic plans conformed to town regulations. More recently, a Superior Court directly addressed the issue of a town health director’s role in issuing well permits and ruled that said duty is ministerial. The court entered temporary and permanent writs of mandamus with straightforward analysis: "The plaintiff has established the three elements of mandamus. The plaintiff has a clear legal right to the approval of well permits for lots 4 and 5. The defendant has no discretion in whether to issue these permits. The plaintiff certainly has no adequate remedy at law. For these reasons, the plaintiff is entitled to the relief of mandamus with respect to lots 4 and 5 as well as any subsequent lots for which application may be made if they are otherwise in compliance with the Public Health Code." American Dimensions, LLC v. Crespan, 2004 WL 3106051, 2 (Pickard, J.) .
The amended complaint alleges that defendant Briggs has a ministerial duty to act in accordance with Connecticut Well Drilling Code and knowingly refuses to perform his duty with respect to the well associated with defendant Parascondola’s property that was illegally constructed in 2012. Regarding his clear legal right to have the duty performed, the plaintiff cites multiple state well permitting requirements, the Connecticut Well Drilling Code, and state regulations. The amended complaint does not allege discretion in the defendant Brigg’s actions. The amended complaint alleges a lack of adequate remedy at law. Specifically, the plaintiff also alleges, "the plaintiff is unable to install the septic system designed to accommodate his anticipated home construction."
Connecticut courts generally favor alternative claims for relief. In a successful mandamus action against a town zoning board, a plaintiff alleged money damages: "In the alternative to the equitable relief, he requested fair, just and adequate money damages. For the following reasons, the court grants a writ of mandamus in favor of the plaintiff and against the defendants." Levine v. Town of Sterling, 2011 WL 5009502, 6 (Vacchelli, J.). Levine is consistent with the general principle in favor of alternative claims for relief. There are other strong grounds for the court to allow alternative claims for relief. Certainly, the Practice Book allows for it: "The plaintiff may claim alternative relief." Practice Book § 10-25. Practice Book § 9-14 states: "Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other." See also Veits v. City of Hartford, 134 Conn. 428, 434, 58 A.2d 389 (1948) ("Where the facts forming the basis upon which the plaintiff claims relief constitute a single transaction or occurrence, he may sue in one action two or more defendants against whom he claims relief, and it does not matter that they may be liable concurrently, successively or in the alternative, or that the relief against each has a different legal basis").
This court should sustain plaintiff’s objection to defendant Briggs’ motion to strike the second count because the allegations of private nuisance as plead against defendant Edward Briggs are legally sufficient and questions of fact exist which make a favorable ruling on the Motion to Strike premature. The Connecticut Supreme Court has defined private nuisance and specified the analysis needed to determine whether a private nuisance exists in Pestey . The Supreme Court considered this definition of private nuisance and analysis necessary to determine whether a private nuisance exists requires a "weighing process, involving a comparative evaluation of conflicting interests" that should not be undertaken at this procedural stage, with only the amended complaint to guide the court. Rather, the "weighing process" should only be conducted by the fact finder in order to fully consider evidence of plaintiff and defendant’s interests as well as the interests of the "community as a whole." Connecticut case law involving nuisance claims against municipal defendants also favors sustaining plaintiff’s objection to the motion to strike. In 1940, the Supreme Court held that the elements of nuisance are questions of fact, not appropriate for a motion to strike: "Whether the action of the city in plowing the street, sanding the same, and otherwise preparing and guarding it for the use of coasters constituted a nuisance as a matter of fact was to be determined, like any other question of fact, by the trial court, taking into consideration all the circumstances. Bagni v. City of Bristol, 127 Conn. 38, 44, 14 A.2d 716 (1940). Further, "[t]his liability cannot be avoided on the ground that the municipality was exercising governmental functions or powers, even in jurisdictions where, as here, immunity is afforded from liability for negligence in the performance of such functions." Id. at 42.
No magic words must be alleged for a pleading to trigger a question of fact for the fact finder when a nuisance claim is properly asserted. In a private nuisance action by town residents against the New Britain Rock Cats and the town for disruptive fireworks displays, a Superior Court denied the defendant’s motion to strike: "The plaintiff’s allegations here do not satisfy the previously quoted test, except as to the allegation that the city routinely controls access to the fireworks display and sends its police and fire personnel to the premises during the fireworks display. Reading this allegation most favorably to the plaintiff, the plaintiff has sufficiently met the ‘positive act’ test." Esposito v. New Britain Baseball Club, Inc., 48 Conn.Supp. 643, 645-46, 856 A.2d 535 (2004).
The cases cited by defendant Briggs are consistent with plaintiff’s arguments that this motion to strike the nuisance claim is premature or not on point. For example, the relevance of State v. Tippetts-Abbett-McCarthy-Stratton is unclear; there was no municipal defendant. That case involved a public nuisance claim, which is not alleged here, and which the Court itself has since acknowledged involves different elements. "Although there are some similarities between a public and a private nuisance, the two causes of action are distinct. Indeed, Professors Prosser and Keeton in their treatise on the law of torts have stated: ‘The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names.’" Pestey, at 357.
Defendant Briggs also relies on Tebbets, although that court seems to conflate public and private nuisance and add an additional hurdle for Tebbets that is not an element of private nuisance: "our cases frequently have applied a functional test ... A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance ..." Id., citing Tippetts-Abbett-McCarthy-Stratton, supra . The "functional test" mentioned appears to be optional, since it is "frequently" but not always applied. Moreover, it is unclear how any Superior Court could perform such a test based solely on the allegations of a complaint, interpreted in a light most favorable to the plaintiff.
The Defendant cites Picco v. Town of Voluntown, 295 Conn. 141, 989 A.2d 593 (2010) for the elements of private nuisance even though this case involved only a public nuisance claim: "The dispositive issue in this appeal is whether the defendants may be held liable pursuant to General Statutes § 52-557n(a)(1)(C) for damages caused by their failure to act to abate an alleged public nuisance." Id. at 142. "We conclude that statute contains a positive act requirement." Id. at 152 (affirming granting of motion to strike public nuisance claim under § 52-557n(a)(1)(C) for personal injuries from a falling tree at an athletic field). Pestey sets forth the elements of a private nuisance claim: "(t)he proper focus of a private nuisance claim ... is whether a defendant’s conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff’s use and enjoyment of his or her property ... [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." Petsey, at 360-61.
Questions of fact relevant to this claim against defendant Briggs exist which are clearly not to be decided on a motion to strike. Interpreting the amended complaint in the light most favorable to the plaintiff now, that complaint properly alleges a private nuisance claim arising from defendant Briggs’ conduct- accepting and/or condoning the illegally constructed well by refusing to act despite his mandatory duty to act pursuant to specific regulations, which conduct defendant Briggs is alleged to know would and/or has caused unreasonable interference with the plaintiff’s use and enjoyment of his property. The allegations imply that defendant Briggs’ interference was intentional and/or the result of his negligent job performance. This court should deny defendant Briggs’ motion to strike because factual questions exist and preclude striking the mandamus and private nuisance counts against defendant Briggs when interpreting the allegations in the light most favorable to the plaintiff.
ANALYSIS
As to mandamus "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no adequate legal remedy." Milford Education Assn. v. Board of Education, 167 Conn. 513, 356 A.2d 109 (1975). The defendant Briggs correct quote’s Connecticut law that "[m]andamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right." Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). The plaintiff, as noted by defendant Briggs, has not cited any law or regulation providing him with a clear, complete and immediate right to have defendant Briggs issue a cease and desist order, nor has plaintiff provided a clear, complete and immediate legal duty to have defendant Briggs issue one or take other enforcement action that should have been done by defendant Briggs in the plaintiff’s view. Plaintiff relies on Regulations § 19-13-B51m(b)(1), which provides: "No water supply well permit shall be given by the director of health ... when a community water supply system ... is deemed available ..." This provision would be appropriate to reference if the plaintiff was requesting that defendant Briggs was asked to issue a permit to by defendant Parascondola, and the plaintiff was requesting that defendant Briggs deny the permit because of the property’s proximity to the public water line. This regulation does not require him to take a positive action, but only requires defendant Briggs to take no action if a well permit was requested and the residence was in close proximity to the public water line. It merely prohibits defendant Briggs from issuing a permit in certain circumstances. It is in effect, him taking no action. The plaintiff here is requesting defendant Briggs to take action by having a cease and desist order issued to defendant Parascondola. Plaintiff is requesting that defendant Briggs exercise his discretionary power to order defendant Parascondola to disconnect his well and to hook-up his residence to the public water line. A mandamus would compel defendant to issue a cease and desist order, clearly not ministerial by any legal interpretation.
Plaintiff alleges that defendant Briggs failed to comply with General Statutes § 19a-36(d). A review of the statute reveals that it does not mandate that defendant Briggs take any particular action, but only indicates under what circumstances that he, as a local director of health may approve certain wells. It does not provide mandatory action by defendant Briggs to issue a cease and desist order to disconnect from the well. The plaintiff in the amended complaint cites the Well Drilling Code Regulations § 25-128-34 et seq. in support of his position. A review of the regulations does not provide any guidance to this court as to why the plaintiff would be entitled to a mandamus based on the fact pattern provided.
The parties have provided no case law regarding a mandamus involving a public health official as the defendant Briggs, and this court was unable to identify any case. Therefore, the court must look to analogous public officials with similar enforcement powers. Greenfield v. Reynolds, 122 Conn.App. 465, 471-72, 1 A.3d 125 (2010) provides analogous guidance. In that matter, the plaintiff demanded that the zoning enforcement officer for the Westport, Connecticut issue a cease and desist order to the abutting property order for zoning compliance. The Appellate Court gave applicable guidance to this matter when it stated: "Our Supreme Court has held that ‘[i]t is axiomatic that [t]he duty [that a writ of mandamus] compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary ... Consequently, a writ of mandamus will lie only to direct performance of a ministerial act which requires no exercise of a public officer’s judgment or discretion ... Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action ... Discretion is determined from the nature of the act or thing to be done rather than from the character of the office of the one against whom the writ is directed." Greenfield at 469-70. For the purpose of this motion, the Greenfield decision provide a clear answer. Given defendant Briggs position and duties, the discretionary function of his duties, and mandamus would not be appropriate. Based on the foregoing, the court, even when construing the pleadings in the manner most favorable to sustaining its legal sufficiency, cannot find that the complaint is legally sufficient to withstand a motion to strike the mandamus claim.
As to private nuisance, the law applicable to private nuisance, as stated above is fairly straightforward. The plaintiff must establish 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." Pestey at 361. The crux of the claim is that "The proper focus of a private nuisance claim ... is whether a defendant’s conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff’s use and enjoyment of his or her property." Pestey at 360 (emphasis added). "The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor." Nailor at 245. "[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." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 327 Conn. 53, 63 n.7, 171 A.3d 409 (2017), citing Pestey v. Cushman, supra, 259 Conn. 361, 788 A.2d 496 (2002).
The plaintiff’s position does not overcome the case law above. The use of the property here was by defendant Parascondola, which involved the use of his well on his property at 1 Lookout Drive which is an abutting property to plaintiff’s property at 29 Lakeview Drive, which continued use prevented the plaintiff from developing his property as he desired. The defendant Briggs has no ownership, control or possessory interest in the defendant Parascondola’s property located 29 Lakeview Drive which would be sufficient to create a private nuisance, but the plaintiff only claims that defendant Briggs failed to restrict the use of how the defendant Parascondola used his own property.
The only other way that defendant Briggs may be liable for a private nuisance is controlled by the case law found in Picco v. Voluntown, 295 Conn. 141, 989 A.2d 593 (2010). The Supreme Court articulated very clearly the following: "This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages. (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance . See, e.g., Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). In the present case, assuming the defendants have not challenged the plaintiffs’ allegations with respect to the four prima facie elements of nuisance. Rather, the defendants’ motions to strike are premised on their claim that § 52-557n(a)(1)(C), like the common law, contains a positive act requirement that the plaintiffs have failed to allege and satisfy." Id. at 146-7 (emphasis added).
General Statutes § 52-557n(a)(1)(C) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ... (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ..." The defendant Briggs’ analysis of the factual circumstances are accurate based on the pleading. The simple fact that defendant Briggs may have not taken action to force defendant Parascondola to disconnect his well and hook back up to the public water supply so as to remove the health code issue preventing the plaintiff from adding on to his house and expanding the septic system, does not rise to the level of requisite positive act to create a private nuisance incurring liability by defendant Briggs. Based on the foregoing, the court, even when construing the pleadings in the manner most favorable to sustaining its legal sufficiency, cannot find that the complaint is legally sufficient to withstand a motion to strike the private nuisance claim.
CONCLUSION
Based on the foregoing, the motion to strike the first and second counts of the plaintiff’s amended complaint is GRANTED.