Opinion
No. CV 05 4007207 S
May 23, 2007
MEMORANDUM OF DECISION ON THE APPLICATION FOR AN ORDER OF MANDAMUS
I. PROCEDURAL HISTORY
Before the court is the plaintiffs,' Edward J. Wadsworth and Mary Wadsworth, application for an order of mandamus pursuant to General Statutes § 52-485 and Practice Book § 23-47. The application arises out of an action filed by the plaintiffs on June 5, 2006, against the defendant town of Wethersfield (the town). The action alleges trespass, nuisance, mandamus and negligence, each arising out of water damage to the plaintiffs' property. The complaint alleges that on or in June 2002 through August 2002, the town constructed a parking lot adjacent to the property and failed to install the proper drainage to protect the plaintiffs' property from surface and below surface water damage.
General Statutes § 52-485 states: "(a) The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law. (b) When any writ of mandamus has been issued, requiring the party to whom it is directed to make a return, if the party fails to do so, the court may issue a peremptory mandamus. (c) Any common law requirement that the state's attorney participate in any way in an action for mandamus is abolished."
Practice Book § 23-47 states: "An order in the nature of a mandamus may be made in aid of a pending action upon the application of any party, and any person claimed to be charged with the duty of performing the act in question may be summoned before the court by the service upon that person of a rule to show cause."
On January 31, 2007, the plaintiffs filed the application for an order of mandamus, as well as the supporting affidavit of one of the plaintiffs, Edward J. Wadsworth, dated January 30, 2007. The mandamus seeks, inter alia, that the town: (1) undertake a physical examination of the water drainage system and topography of the school property, (2) provide a full disclosure and written report to the plaintiffs and the court, and (3) pay for all costs and expenses. On January 31, 2007, the town filed its objection stating that the plaintiffs are precluded from seeking such relief because inspecting the drainage system constitutes a discretionary act.
On April 4, 2007, the court conducted an evidentiary hearing where the parties presented the testimony of numerous witnesses and introduced various exhibits. Based on the credible evidence provided at the hearing, the court finds the following facts and reaches the following conclusions.
CT Page 7510
II DISCUSSION
"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." (Internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004). "Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990).A. Performance of a Mandatory Act
In this case, the plaintiffs claim that the town has a ministerial duty to perform the mandatory act of inspecting the drainage system under the authority of: (1) the Connecticut Water Pollution Control Act, General Statutes § 22a-416 et seq., (2) the regulations of Connecticut state agencies, § 22a-430-3(a) et seq., and (3) the permit that the town obtained, permit number GSM000031.
It should be noted that the plaintiffs argue that §§ 22a-430-3(a) and 22a-430-c(f)(1) of the Regulations of Connecticut State Agencies supplement General Statutes § 22a-416 et seq. in establishing a ministerial duty on the town. The court disagrees. Section 22a-430-3(a) is the "definitions" section located within the section entitled, "General Conditions Applicable to Water Discharge Permits." No portion of this section is applicable to the plaintiffs' claim. Section 22a-430-c(f)(1) does not apply to the plaintiff's claim because such section does not appear to exist. The court, therefore, does not consider these sections as establishing the duty to perform of a mandatory act.
"[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 . . . 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." (Internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Sewer Commission, supra, 270 Comm. 422.
Section 22a-416 states, in pertinent part, that: "(a) The Commissioner of Environmental Protection shall examine all existing or proposed disposal systems, and shall compel their operation in a manner which shall conserve and protect the natural resources and environment of Connecticut and protect the public health, safety and welfare . . . (c) The commissioner may, by regulations adopted in accordance with the provisions of chapter 54, delegate to municipalities or regional sewer authorities the authority to review and approve plans and specifications for the design and construction of sanitary sewers."
Our Supreme Court analyzed the history of General Statutes §§ 22a-416 through 22a-484, the Connecticut Water Pollution Control Act (the act), in Starr v. Commission of Environmental Protection, 226 Conn. 358, 376-90, 627 A.2d 1296 (1993). The Starr court stated that the act "embodies the concept that no one, whether individual, industry or community, has the right or privilege to render [Connecticut] water resources unusable by pollution . . . The act comprehensively address issues of municipal and industrial water pollution by setting water quality standards, mandating a permit program, establishing a new enforcement scheme and creating tax incentives and low interest loans for constructing pollution abatement facilities." (Citation omitted; internal quotation marks omitted.) Id., 376-77.
Although Starr was remanded to the trial court and later reversed by the Supreme Court in Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 675 A.2d 430 (1996), the original Starr court's recount of the act's history was not affected by the reversal.
The Starr court also noted that the legislative sources concerning the enactment of the 1967 act "mandate that the [department of environmental protection] be given broad powers under the act to issue orders necessary to correct existing and potential sources of pollution and to achieve the remedial purposes of the act." Id., 382. The plaintiffs, in their memorandum, agree with the Starr court and "concede that [§ 22a-416, et seq.] provide[s] [broad] authority to the [c]ommissioner of [e]nvironrnental [p]rotection." The plaintiffs also argue that despite this concession, "the statutes do not appear to preclude this [c]ourt from ordering an inspection of the storm water drainage system at issue." While this court agrees that the act provides the commissioner with broad authority, it disagrees with the assertion that the statutes do not appear to preclude the court from ordering an inspection of the drainage system. A mandamus does not require that a plaintiff prove that no discretionary duty appears to exist, but rather, that an affirmative, mandatory duty does exist. See Avalon Bay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 422. Accordingly, the court does not find that the act provides the town with the mandatory authority to inspect the drainage system.
The court also notes that the plaintiffs' complaint uses similar language. Instead of alleging that a ministerial duty exists, the plaintiffs allege in paragraph eleven (11) that "[i]t is not within the defendant's discretion to refuse to correct the drainage when the cause of the problem was due to the defendant's failure to construct the drainage when it constructed the adjacent parking lot."
B. Clear Legal Right to Have the Duty Performed
The plaintiffs claim that as taxpayers they have a clear legal right to seek enforcement of the town's alleged duty to inspect the drainage system. However, a "mandamus neither gives nor defines a right which one does not already have, it cannot, and does not, act upon a doubtful or contested right." Hackett v. New Britain, 2 Conn.App. 225, 228, 477 A.2d 148, cert. denied 194 Conn. 805, 482 A.2d 710 (1984). Therefore, since the town does not have a mandatory duty to inspect, the plaintiffs cannot prove "the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) See Honan v. Greene, 37 Conn.App. 137, 143, 655 A.2d 274 (1995).
C. No Adequate Remedy at Law
The plaintiffs argue that there is no adequate remedy at law. Our Supreme Court has stated that a mandamus will not issue where there is an adequate remedy at law available to the plaintiff that "will afford satisfaction equivalent to the specific relief claimed." Milford Education Ass'n. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975). "Adequate remedy at law means a remedy vested in the complainant, to which he may at all times resort, at his own option, fully and freely, without let or hindrance." Id. This court finds that there are at least two adequate remedies at law available to the plaintiffs.
First, Practice Book § 13-9(a) provides an adequate remedy at law. Section 13-9(a) states: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, any party may serve in accordance with Sections 10-12 through 10-17 upon any other party a request to afford the party submitting the request the opportunity . . . to permit entry upon designated land or other property for the purpose of inspection, measuring, surveying, photographing, testing or sampling the property or any designated object or operation thereon."
Second, the town's attorney stated, at oral argument, that he did not believe that the town would object to an inspection of the drainage system. However, in this regard, the court notes that a substantial portion of the drainage pipe at issue appears to lie within a state easement rendering it questionable as to whether the town possesses the absolute authority to enter upon the land and inspect the pipe or to authorize others to perform the same tasks. Accordingly, the plaintiffs have not succeeded in proving that there is no adequate remedy at law.
III CONCLUSION
For the foregoing reasons, the court concludes that the plaintiffs have not met their burden of establishing the three requirements for an order mandamus. Therefore, the court denies the plaintiffs' application.