Opinion
No. CV02 97 76 32
January 27, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO STRIKE
The motions before the court are the defendants' motion to dismiss and the plaintiff's motion to strike the defendants' special defenses. The plaintiff, Linda Stock, the zoning enforcement officer for the city of Milford, commenced this action by service of process on the defendants, Andrew J. Pavlucik, Jr., Patricia Pavlucik and Greg Pavlucik, on March 27, 2002. The complaint alleges that the defendants had constructed, or allowed to be constructed, a new deck and additional remodeling on the rear of their premises located in Milford, Connecticut. The plaintiff also alleges that on or about October 18, 2001, she issued an order to Greg Pavlucik that this construction work violated §§ 8.3 and 8.5 of Milford's zoning regulations because it was done without prior zoning approval; this order mandated that Greg Pavlucik obtain the required zoning permit within ten days. Finally, the plaintiff alleges that she brings the action pursuant to General Statutes § 8-12 because the defendants violated the city's regulations. In addition to damages, the plaintiff seeks a permanent injunction enjoining the defendants from maintaining the premises in violation of the city's zoning regulations, an immediate removal of the deck, and an order permitting the plaintiff, or her agents, to periodically inspect the premises.
The following procedural history of the case is relevant to the pending motions. The defendants filed their appearance on April 3, 2002. On April 15, 2002, they filed an answer and special defenses alleging the following: (1) the plaintiff is equitably estopped from issuing an order requiring them to obtain a zoning permit; (2) the construction was not a change in use; (3) the order was an abuse of discretion by the plaintiff; and (4) the city waived the zoning permit requirement when it issued the building permit to them. In addition, the defendants allege that the premises is lawfully nonconforming because the structure was erected circa 1900, prior to the adoption of Milford's zoning regulations on June 11, 1930.
On June 18, 2002, the plaintiff filed a motion to strike the defendants' special defenses on the ground that they are legally insufficient. Her motion is accompanied by a memorandum of law in support thereof. The defendants filed a memorandum of law in opposition to the plaintiff's motion on June 26, 2002. Subsequently, the plaintiff filed a reply on August 9, 2002, to which the defendants responded on August 21, 2002.
On March 31, 2003, in the context of a settlement hearing, the court, Nadeau, J., ordered the defendants to apply for a zoning permit by April 15, 2003. On April 23, 2003, the city's appropriate zoning official approved their application and issued the permit. The defendants then filed a motion for summary judgment on July 30, 2003, arguing that they were entitled to judgment as a matter of law because they had obtained the requisite permit and, thus, no genuine issue of material fact remained. The plaintiff opposed the motion. On August 18, 2003, the court, Nadeau, J., ruled from the bench and denied the defendants' motion for summary judgment on the ground that the matter is not moot because the issue of damages remains.
On September 23, 2003, the defendants filed a motion to dismiss along with a memorandum in support thereof. The defendants argue that the matter is moot because no actual controversy exists because they have obtained the zoning permit. They reason, by extension, that the court lacks subject matter jurisdiction over the action. The defendants contend further that the fact that the plaintiff still seeks attorneys fees and costs does not prevent the matter from being rendered moot.
The plaintiff filed her memorandum of law in opposition to the motion to dismiss on October 24, 2003. She argues that because the court previously denied the defendants' motion for summary judgment and held that the matter was not moot then, based on the doctrine of the law of the case, this court should also find that the matter is not moot. The plaintiff also argues, in the alternative, and as she argued in opposition to the summary judgment motion, that she is entitled to relief under General Statutes § 8-12.
General Statutes § 8-12 provides in relevant part: "If any building or structure has been erected, constructed, altered, converted or maintained . . . in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction . . . may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation . . . The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists . . . shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues . . . If the court renders judgment for such municipality and finds that the violation was wilful, the court shall allow such municipality its costs, together with reasonable attorneys fees to be taxed by the court . . ." (Emphasis added.)
The court will consider the defendants' motion to dismiss first. "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Id., 52. "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenblock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Citation omitted; internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 79 Conn. App. 384, 390, 830 A.2d 767 (2003). "The determination of whether a claim has become moot is fact sensitive, and may include the representations made by the parties at oral argument." Ayala v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996).
It is undisputed that the defendants complied with the court's order to apply for the zoning permit, and that Milford's zoning official approved their application and issued the permit. No actual controversy remains, therefore, on the issue of whether the defendants have complied with the plaintiff's order requiring them to obtain a zoning permit. It is also undisputed, however, that during argument for the summary judgment motion, the defendants' counsel agreed that the issue of damages remains. "As a general matter, while cessation of allegedly unconstitutional or illegal activity may render moot a claim for injunctive relief, such cessation will not render moot a case that also states a claim for damages resulting from such activity prior to its cessation." Hallas v. Windsor, 217 Conn. 689, 692, 587 A.2d 149 (1991). Therefore, the plaintiff has met her burden of proving that the court has subject matter jurisdiction over this action because an actual controversy remains regarding damages; the court can still grant the plaintiff practical relief in the form of costs and attorneys fees pursuant to § 8-12.
In addition, the doctrine of the law of the case supports this conclusion. "The law of the case doctrine provides that when a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 130 n. 21, 788 A.2d 83 (2002). "The law of the case is not written in stone but is a flexible principle of many facets . . ." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 259, 532 A.2d 1302 (1987). "[A] judge should not (however] lightly depart from a prior ruling on a motion before the same or a different judge . . ." (Internal quotation marks omitted.) Id. As noted above, the court previously denied the defendants' summary judgment motion and held that the matter was not moot. Therefore, the court denies the defendants' motion to dismiss as they rely on the same grounds and no new circumstances have arisen.
Next, the court considers the plaintiff's motion to strike the defendants' special defenses for legal insufficiency. "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.) Salemme v. Seymour, 262 Conn. 787, 792, 817 A.2d 636 (2003). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 13, 779 A.2d 198 (2001). "In . . . ruling on the . . . motion to strike, the trial court . . . [must] take the facts to be those alleged in the special defenses and . . . construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiff moves to strike the defendants' special defenses in their entirety for legal insufficiency on the following grounds: (1) issuance of a building permit does not estop the enforcement of zoning regulations; and (2) the defendants must obtain a zoning permit despite the nonconformity or use of the premises.
Because the court, Nadeau, J., previously ordered the defendants to obtain a zoning permit, and they subsequently complied, the question of the legal sufficiency of the defendants' special defenses is now moot. Although the court also previously denied the defendants' motion for summary judgment on the ground that the matter is not moot because the issue of damages remains, that ruling applied to the plaintiff's claims and not to the defendants' special defenses. For the foregoing reasons, the court grants the plaintiff's motion to strike the defendants' special defenses in their entirety because they are now moot.
UPSON, JUDGE.