Opinion
KNLCV136016629S
01-09-2018
Victor WOZNIAK v. TOWN OF COLCHESTER
UNPUBLISHED OPINION
OPINION
Knox, J.
The Defendant, Town of Colchester (Town) filed its motion for summary judgment, dated May 1, 2017, on the ground of lack of subject matter jurisdiction and lack of duty owed to the Plaintiffs (# 121.00). In support of its motion for summary judgment, the Defendant filed a memorandum of law accompanied by exhibits. The Plaintiffs Victor A. Wozniak and Olga Wozniak (Wozniaks) filed a memorandum of law in opposition, dated July 12, 2017 (# 126). The Plaintiffs’ memorandum of law was accompanied by exhibits and a separate affidavit of the Plaintiff Victor A. Wozniak (# 126.00). The Defendant Town filed a reply memorandum of law (# 131.00). The court heard argument on the motion for summary judgment on November 13, 2017.
Background
The second amended complaint (# 114) is set forth in three counts as follows: count one, writ of mandamus; count two, inverse condemnation; and, count three, negligence. In the second amended complaint, it is alleged that the Plaintiffs Victor A. Wozniak and Olga E. Wozniak own property (Plaintiffs’ Property) in Colchester, Connecticut. The Defendant Town is a municipal authority. The Defendant Town is a Mapping Partner under FEMA and it is alleged that " [a] Mapping Partner’s responsibilities include initiating Letter of Map Revisions (LOMRs) when Flood Insurance Rate Maps (FIRMS) need to be updated or corrected." (Second Amend. Compl. Para. 5.) " One of the responsibilities is to prepare and insure the accuracy of any FIRM." (Second Amend. Compl. Para. 6.) The Plaintiffs claim that their Property is incorrectly listed on a Flood Insurance Rate Map (# 09011C 0154G, dated July 18, 2011) as being designated in a flood zone. (Id., Para. 8.) In addition, it is alleged as follows:
10. Specifically, the Plaintiffs’ survey showed that Judd Brook Channel as shown on the FIRM was not in fact in the location shown on the FIRM and that it was not on the Plaintiffs’ Property.
11. Plaintiffs through historical data and survey data demonstrated that the sluiceway was located on the abutting property and as a result the flood plain elevation for the Plaintiffs’ property was incorrect.
12. This incorrect depiction places a significant portion of the Plaintiffs’ Property in the flood plain when it is not.
13. As a result of this error, a substantial, if not the entire portion, of the Plaintiffs’ property is rendered unusable.
14. The Town is obligated under FEMA regulations to insure that its maps are accurate and up to date.(Id.). In other words, the Plaintiffs claim that the Judd Brook is shown in the wrong location on the Federal Emergency Management Act (FEMA) map and the flood plain elevation for the Plaintiffs’ Property is incorrect. The Plaintiffs claim that " under FEMA regulations municipalities are mandated to regularly review and revise their maps so that they represent current conditions, " and the Town has failed to perform this ministerial act to update or correct the FIRM for the Plaintiffs’ Property. (Second Amended Compl., Paras. 15-16.) The Plaintiffs, in count one, seek a court order by writ of mandamus directing the Defendant Town to file a Letter of Map Revision with FEMA to correct the errors they believe are depicted on the FEMA flood insurance rate maps. In count two, the Plaintiffs claim that the failure to file the LOMR with regard to the Plaintiffs’ property has caused limited use of the Plaintiffs’ commercially zoned land, which is undevelopable because it is, in part, classified in a flood zone. Count three sets forth a negligence claim against the Defendant Town for the failure to file Letter of Map Revision with FEMA premised on the claim that the Town has a duty to do so.
The Defendant filed an answer and special defenses on August 11, 2015. In its single special defense the Defendant claims the negligence count and claim for monetary damages are barred by the doctrine of government immunity. The Plaintiffs filed a reply to the special defense on August 25, 2015 and the matter was claimed to the trial list on August 18, 2016.
The Defendant subsequently filed this motion for summary judgment. The Defendant’s exhibits include blank forms or templates for both a FEMA Letter of Map Amendment (LOMA) and Letter of Map Revision (LOMR), along with the accompanying instructions. These will be discussed more fully infra . The Plaintiffs’ opposition was supported by accompanying exhibits and the affidavit of Plaintiff Victor Wozniak. The Plaintiff’s exhibits include correspondence between the Town and FEMA with regard to initiating a LOMR for the diversion of the Judd Brook on a non-contiguous property located in the Town. More particularly, prior to 2011, a portion of the Judd Brook located on an unrelated property, referred to as the S & S parcel, was diverted by placing a portion of it into piping. The Defendant filed a reply memorandum of law. In the Defendant’s reply it relies, in part, on the affidavit of the Plaintiff Victor Wozniak. The Defendant provided correspondence between the Plaintiffs and FEMA regarding a LOMA initiated by the Plaintiffs concerning Plaintiffs Property’s classification as flood zone.
These form documents attached to the Defendant’s memorandum of law are public records, which are available online on FEMA’s public agency official website.
The diversion of Judd Brook on the S & S parcel is upstream and across Lebanon Avenue, which separates the S & S parcel from the Plaintiffs’ property. (Pl. Ex. G.)
The Plaintiffs’ Property has been designated, in part, as a flood area since inception of the relevant Federal Insurance Rate Map and continues to be so designated. The Court finds that there is no dispute that prior to 2011 the Judd Brook was diverted into piping on the S & S parcel. It is undisputed this diversion on the S & S parcel did not affect the location of the Judd Brook on the Plaintiffs’ property. (Aff. Wozniak.) It is also undisputed that the point of discharge following the re-routing of the Judd Brook did not change. (Id.)
Law Re Motion for Summary Judgment
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). Summary judgment shall be rendered " 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. " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). " Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for 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.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
The Defendant filed a motion for summary judgment on two legal bases: (1) the court lacks subject matter jurisdiction; and (2) it owes no duty to the Plaintiffs.
Applicable Law and Analysis
The Defendant claims that the regulations governing LOMRs do not give the Plaintiffs a private cause of action against the Town, the Town has no duty to file a LOMR on behalf of the Plaintiffs, and that the process of a LOMR is a discretionary act and triggers governmental immunity. The Defendant further claims that the inverse condemnation claim fails because the alleged taking is not the result of any action by the Town.
In each count of their complaint, the Plaintiffs rely on the regulation governing LOMRs to establish that the Defendant owes a duty to the Plaintiffs to file LOMR on their behalf, and it has failed to do so. The Plaintiffs argue that the Town’s obligation to file a LOMR is non-discretionary.
The following law governing flood area maps maintained by and under the auspices of FEMA is applicable to this case. The National Flood Insurance Act (NFIA) was enacted by Title XIII of the Housing and Urban Development Act of 1965 to ensure flood insurance protection to property owners in flood prone areas. 42 U.S.C. § 4011 (2017); see also 44 C.F.R. § 59.2. The National Flood Insurance Program (NFIP) is a federal program, administered and implemented by FEMA, which enables private property owners to purchase federal flood insurance. 42 U.S.C. § 4001(d) (2017).
For a community to qualify for the sale of federally subsidized flood insurance, the community must adopt and submit to FEMA flood plain management regulations that meet the minimum standards established by FEMA. 44 C.F.R. § 59.2(b). Under the NFIA, a " community" includes a town or municipality. 42 U.S.C. § 4003(a)(1) (2017); see also 44 C.F.R. § 59.1. The Defendant is a " community" under the act. If a community fails to adequately enforce its flood plain management regulations, the community will be subject to probation and possible suspension from the NFIP. See 44 C.F.R. § 59.24(b) and (c).
Under consideration in this case are two avenues to request changes to the FEMA flood insurance maps: LOMRs and LOMAs.
A Letter of Map Revision is the procedure by which an individual, firm, or other non-community official can initiate an actual change or revision to a FEMA map based on the occurrence of a physical change. 44 C.F.R. § 65.4. A LOMR initiated by a non-community, member must include a concurrence form submitted through the community’s chief executive officer or designated official. A Town, which is a community partner, can also initiate a LOMR, for example when new projects might justify a map revision. See, 44 C.F.R. § 65.8.
There is no claim that the Defendant Town is unwilling or has refused to sign a consent form. The Town has represented in its pleadings that it is willing to provide a concurrence letter to a LOMR filed by the Plaintiffs (Def. Memo. of Law, pp. 4-5).
The following are the relevant provisions, which govern LOMRs. Title 44 of the Code of Federal Regulations, provides:
42 U.S.C. 4104 authorizes the Administrator to identify and publish information with respect to all areas within the United States having special flood, mudslide (i.e. mudflow) and flood-related erosion hazards. The purpose of this part is to outline the steps a community needs to take in order to assist the Agency’s efforts in providing up-to-date identification and publication, in the form of the maps described in part 64, on special flood, mudslide (i.e. mudflow) and flood-related erosion hazards.44 C.F.R. § 65.1. (Emphasis added.) The " steps" are, in part, outlined in 44 C.F.R. § 65.3, which provides:
A community’s base flood elevations may increase or decrease resulting from physical changes affecting flooding conditions. As soon as practicable, but not later than six months after the date such information becomes available, a community shall notify the Administrator of the changes by submitting technical or scientific data in accordance with this part. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and flood plain management requirements will be based on current data.44 C.F.R. § 65.3 (Emphasis added.)
A Letter of Map Amendments is the procedure by which to establish a property’s location in relation to a special flood hazard area. It is usually used when a property has been inadvertently mapped as being in a flood plain, but it is actually above flood elevations. 44 C.F.R. § 70.3. Section 70.3 provides: " Any owner or lessee of property (applicant) who believes his property has been inadvertently included in a designated A, AO, A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE and V zones on a FHBM or FIRM, may submit scientific or technical information to the Federal Insurance Administrator for the Federal Insurance Administrator’s review." Id. (Emphasis added.) A LOMA submission to FEMA must include a community acknowledgment form whereby an appropriate community official acknowledges the LOMA applicant’s request to remove a property from the special flood hazard area.
The Defendant in its pleadings represented it agreed to provide a concurrence letter for the Plaintiffs’ LOMA submission and remains willing to do so on a subsequent LOMA submission (Def. Memo. Of Law, p. 5 and Def. Ex. A58-62).
The following are the relevant provisions, which govern LOMAs. Title 44 of the Code of Federal Regulations, § 44 C.F.R. § 70 et seq., allows a property owner to file a LOMA. Title 44 of the Code of Federal Regulations, § 70.1, provides:
The purpose of this part is to provide an administrative procedure whereby the Federal Insurance Administrator will review the scientific or technical submissions of an owner or lessee of property who believes his property has been inadvertently included in designated ... Zones, as a result of the transposition of the curvilinear to either street or to other readily identifiable features. The necessity for this part is due in part to the technical difficulty of accurately delineating the curvilinear line on either an FHBM or FIRM. These procedures shall not apply when there has been any alteration of topography since the effective date of the first NFIP map (i.e., FHBM or FIRM) showing the property within an area of special flood hazard. Appeals in such circumstances are subject to the provisions of part 65 of this subchapter.§ 44 C.F.R. § 70.1 (emphasis added).
These regulations are the bases upon which the court must determine whether or not the Defendant Town owes a duty to the Plaintiffs to file a LOMR for the potential benefit of the Plaintiffs, which forms the bases of each count. Neither party has cited any authority which clearly or directly establishes that the Plaintiffs, as property owners, can bring a lawsuit against a community partner to compel it to file a LOMR on behalf of an aggrieved property owner.
1. Count One- Writ of Mandamus
With respect to count one, " [a] writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ... [The court’s 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." (Internal quotation marks omitted.) Garcia v. Hartford, 135 Conn.App. 248, 255, 42 A.3d 429 (2012). " 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.) Greenfield v. Reynolds, 122 Conn.App. 465, 469, 1 A.3d 125, cert. denied, 298 Conn. 922, 4 A.3d 1226 (2010). All three prongs must be satisfied for a writ of mandamus to issue. This case presents a question of first impression as to whether a Town that participates in the Flood Insurance Rate Maps under the auspices of the Federal Emergency Management Act owes a duty to a property owner located in its Town to correct FEMA maps and whether the performance of the duty is mandatory. The answer is no to both issues.
Under the first prong, the court must first consider whether or not the regulations governing LOMRs, which the Plaintiffs rely upon, imposes on the Town a duty to the Plaintiffs which is mandatory. In this case, the LOMR regulations broadly provide the steps the Town may take in initiating a LOMR. In Kmart Corp. v. Kroger, 963 F.Supp.2d 605, 612 (N.D.Miss. 2013), the plaintiff alleged that the City improperly " aided and supported the issuance of the LOMR that allowed Kroger [the adjacent property owner] to remain in the floodway, with no scientific basis for doing so." The court noted " that local governments- including cities- are given a certain amount of latitude to adopt ordinances that comport with federal standards. Another way of saying this is that cities are allowed discretion in implementing their local flood prevention and protective measures." Id., 614.
The NFIA " require[s] States or local communities, as a condition of future Federal financial assistance, to participate in the flood insurance program and to adopt adequate flood plain ordinances with effective enforcement provisions consistent with Federal standards to reduce or avoid future flood losses [.]" 42 U.S.C. § 4002(b)(3).Id. The Kroger Court considered the LOMR regulations, namely 44 C.F.R. § § 65.3 and 65.4, and noted that while the City might submit a LOMR to request a map revision, it has broad discretion in the mechanics of doing so. In Kroger, the court noted that:
The matter of acquiring the appropriate technical data to support the request would obviously involve an analysis of the available data and judgment to determine which data would support the request to revise the flood maps. Even completing the necessary forms would require choice or judgment on the part of the local government in the individual tasks required in the course of submitting the LOMR request. For all these reasons, the Court finds that the NFIA does not give the City a ministerial duty with respect to aiding and supporting a LOMR request.Id.
The regulations pertaining to the filing of a LOMR do not compel the Town to act for the Plaintiffs to file a LOMR. The Plaintiffs cite to 44 C.F.R. § 65.3, which provides in relevant part: " As soon as practicable, but not later than six months after the date such information becomes available, a community shall notify the Administrator of the changes by submitting technical or scientific data in accordance with this part. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and flood plain management requirements will be based upon current data." (Emphasis added.) While " shall" may mean a mandatory act, the proper question in determining whether a statute is mandatory is " whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 465, 692 A.2d 742 (1997). The court cannot conclude that the notice is ministerial as it requires a judgment that a physical change has occurred, that the physical change may impact the mapping, and what the notice must entail.
Even assuming that the notice provision is mandatory, the regulations do not mandate the scope or nature for the supporting " technical or scientific data." See, State v. Sul, 146 Conn. 78, 89, 147 A.2d 686 (1958) (the use of the disjunctive " or" between the parts of the statute indicates a clear legislative intent of separability); Harris v. Egan, 135 Conn. 102, 105, 60 A.2d 922 (1948) (same). In this case, a LOMR for the Plaintiffs’ property might require scientific data, technical data or both. It is likely that the nature of the data will be contingent on many variables relative to identifying, reducing or avoiding future flood losses. The mere act of initiating a LOMR does not necessarily result in a revision to a FIRM, as FEMA determines the FIRMS. In other words, in using the term " or" the scope and nature of a LOMR will necessarily vary depending on the nature of the " physical changes" which prompt the submission. The filing of a LOMR is multifaceted and complex. The regulation does not create a duty by the Town to the Plaintiffs, and initiating a LOMR is neither mandatory nor ministerial.
The Plaintiffs argue that there is a physical change, which requires the Town to initiate a LOMR on their behalf, namely the diversion of the Judd Brook on the S & S parcel prior to 2011. In support of this claim, the Plaintiffs refer to the Town’s submission of a LOMR with regard to flood zones associated with the Judd Brook diversion " as necessitated by physical change" that occurred between the years of 1989 (initial concept) and 1996 (final design/construction) for the diversion of Judd Brook into RPC piping on the S & S parcel to rectify all existing flooding condition at that location. (Pl. Opposition, Ex. D.) However, that diversion occurred on the S & S parcel, not the Plaintiffs’ property. (Pl. Opposition, Ex. B.) Nor does that diversion impact the Plaintiffs’ Property. It is undisputed that this diversion on the S & S parcel did not affect the location of the Judd Brook on the Plaintiffs’ property. (Aff. Wozniak.) It is also undisputed that the point of discharge following the re-routing of the Judd Brook did not change. (Id.) In sum, the physical changes to the Judd Brook diversion on the S & S parcel did not create any changes to the Plaintiffs’ Property.
The Plaintiffs alternatively argue that the Judd Brook is not correctly depicted on the FIRM (map 0154G), so the Town has a duty to file a LOMR. First, that is not the basis for a LOMR, which is precipitated by a " physical change" which affects the Federal Insurance Rates Maps. As such, a LOMR is not the mechanism to address an alleged error on a map. Where the Judd Brook is located on the map is not a physical change, but a claim of error in mapping. As noted previously, physical changes to the Judd Brook on the S & S parcel did not have any changes to the Plaintiffs’ Property, which is across Lebanon Avenue and non-contiguous to Plaintiffs’ Property. The regulations governing LOMRs do not impose a duty by Town to the Plaintiffs based on claim of incorrect location of a waterway on FEMA/FIRM map.
The Defendant disputes that there is any error on the FIRM (0154G). However, the Court does not reach that issue because the Court concludes that there is no legal bases for a writ of mandamus under the relevant FEMA regulations.
A LOMR was initiated by the Defendant Town with regard to the Judd Brook diversion on the S & S parcel, but that does not in itself create any duty to unrelated property owners. (Pl. Exs. E & F.)
As to the second prong, the regulations do not set forth any support for the proposition that the Plaintiffs have " a clear legal right to have the duty performed." Neither party has cited any Connecticut authority which addresses this issue nor do the regulations themselves support the proposition. However, authorities from other jurisdictions provide a reasoned analysis, which this court adopts. Neither the NFIP nor the relevant regulations governing LOMRs, 44 C.F.R. § 65.1 et seq., provide a private cause of action for non-compliance with the regulations. In Hall v. United States Army Corps of Engineers, Docket No. 4:08CV00278 BSM (E.D.Ark. 2008), the court dismissed a property owner’s claims against FEMA and a municipality because there is no private cause of action provided in the statutes or regulations. Similarly, in Kmart Corp. v. Kroger, 963 F.Supp.2d 612, the court held that the NIFA does not create a private cause of action by a shopping center tenant for flooding allegedly caused by use of adjacent property in flood zone. See Kmart Corp. v. Kroger, 963 F.Supp.2d 605 (N.D.Miss. 2013) (holding that the City was immune from liability under an exception to the statutory waiver of government immunity); see also Hall v. United States Army Corps of Engineers, Docket No. 4:08CV00278 BSM (E.D.Ark. 2008); United States v. St . Bernard Parish, 756 F.2d 1116, 1123 (5th Cir. 1985) (holding that the NFIP does not provide a private right of action to sue a community for flood damage caused by the community’s violation of its obligation to adopt and enforce flood control measures consistent with its participation in NFIP). First, the regulations do not provide the owners with a legal remedy against either the community partners or FEMA. The Plaintiffs rely on the provision in 44 C.F.R. § 65.3 that " a community shall notify the Administrator of the [physical] changes " as creating a mandatory duty owed by the Town to the Plaintiffs. However, that provision is too slim a reed to impose a mandatory duty on community partners to file LOMRs at the behest of property owners. It is also noteworthy that initiating of LOMR is only part of a process, it does not necessarily result in a map revision or a desired map revision. FEMA will determine if a LOMR based on physical changes warrant a map revision. See, Kmart Corp. v. Kroger, 963 F.Supp.2d 615.
As to the third prong, the Plaintiff is not without a remedy under the FEMA regulations. A LOMA, which is a distinct procedure from a LOMR, is a process by which a property owner, whose property has been inadvertently included in a flood zone, may request that FEMA amend the FIRM to correct an error. Under 44 C.F.R. § 70.1, the Plaintiffs may file a LOMA for the very issue complained of, which is that an " incorrect depiction [on the FIRM) places a significant portion of the Plaintiffs’ Property in the flood plain when it is not." (Second Amended Complaint, Para. 12.) The Plaintiffs filed a LOMA to correct the depiction of their Property as a flood zone (Pl. Ex. 3). This Court considered the Plaintiffs’ claim that FEMA " denied" its LOMA. However, in response to Plaintiff’s filing of a LOMA to correct the depiction of their Property as a flood zone, FEMA responded not with a denial, but with a request that a list of " forms or supporting data, which were omitted from the previous submittal, must be provided." (Memo in Opp., Ex. H.) The Plaintiffs did not provide documentation that FEMA, in fact, denied the LOMA. To the contrary, FEMA requested supporting information from the Plaintiffs. The Court cannot conclude that action constitutes a denial of the LOMA.
For the reasons set forth, the court holds it lacks subject matter jurisdiction on the writ of mandamus action because: (1) NFIA, and more particularly 44 C.F.R. § 65.1 et seq., does not impose on the Town a duty to file a LOMR on the Plaintiffs’ behalf, the performance of which is mandatory; (2) the Plaintiffs do not have a clear legal right to have the duty performed; and (3) the Plaintiffs have a regulatory remedy under 44 C.F.R. § 70.1. In sum, the court concludes that none of the three prongs required for a writ of mandamus to issue are satisfied.
2. Count Two- Inverse Condemnation
" [A]n inverse condemnation occurs when either: (1) application of the regulation amounted to a practical confiscation because the property cannot be used for any reasonable purpose." (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 174 Conn.App. 531, 534, 166 A.3d 20, cert. denied, 327 Conn. 926, 171 A.3d 61 (2017); see AEL Realty Holdings, Inc. v. Board of Representatives, 82 Conn.App. 613, 621, 847 A.2d 998 (2004) (" [t]he relevant inquiry here is whether the government regulation of the property has so financially burdened the landowner as to constitute a practical confiscation"). In this case, the Plaintiffs allege in count two that:
16. The Town of Colchester assesses the Property for tax purposes at seventy percent of its fair market value without consideration toward whether the Property can be reasonably utilized.
17. Presently the Property is undeveloped and, absent a change in the FIRM, incapable of any reasonable development.
18. The property is commercial zoned and much of the surrounding area is developed as commercial development.
19. Plaintiffs can put the Property to no reasonable use and because of the mis-designation any development of the property would be cost prohibitive because it would require compliance with federal flood insurance guidelines as well as flood insurance despite the fact it is not in a flood plain.
20. The Defendant’s failure to correct the FIRM has deprived the Plaintiffs of the reasonable use of the Property and as a result caused a depreciation of the value thereof.
21. The Defendant’s failure to correct the FIRM has effectively resulted in a confiscation of the Property without compensation.(Second Amended Compl., Paras. 16-21.)
The Plaintiffs have not alleged any " application of the regulation" that has affected a practical taking of their property without just compensation. Rather, the Plaintiffs’ claim is limited to inaction by the Defendant in failing to file a LOMR. Because the Plaintiffs have not cited to any regulation or application of a regulation that requires the Town to file a LOMR for the benefit of the Plaintiffs in regard to the Plaintiffs’ property, there is no effective taking. Nor has the plaintiff made any claim in support of the claim other than that the Town has a duty to file. Furthermore, the Plaintiffs have a remedy under the regulations governing LOMAs, 44 C.F.R. § 70.1 et seq., to have FEMA review the designation of their property on the FEMA FIRM, and amend it accordingly.
The Plaintiffs have not further briefed this issue, but rely only on the FEMA regulations as creating a mandatory duty to file a LOMR.
3. Count Three- Negligence
As to the Plaintiffs’ count three claiming negligence, the Defendant once again repeats its claim that the Defendant owes no duty to the Plaintiffs to file a LOMR on their behalf. For the reasons set forth supra, the Town may not be held liable to the Plaintiffs in the absence of any duty under the regulations. Furthermore, the Town has common-law governmental immunity in the absence of a statutory exception. See, Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). It is noteworthy that in Gauvin, the Supreme Court held that " ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." In this case, the filing of a LOMR requires many discretionary actions. The Plaintiffs have not pled any statutory exception to government immunity, but more importantly, the court concludes there are no bases upon which to hold that the Town owes a duty to the Plaintiffs under the facts and circumstances in this case.
See fn. 7.
Conclusion
The motion for summary is ordered granted on all counts.