Town of Sprague v. Margaret Dotolo (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

FACTS

The above-captioned matter arises from the Town of Sprague's attempt to enforce its zoning regulations against the defendant.   See Plaintiff's Complaint.   Specifically, the plaintiff claims that the defendant has violated the Sprague zoning regulations by having more than one unregistered motor vehicle on her property and for operating a junkyard on her property.  Id., First Count, ¶¶ 5-6.   The plaintiff claims that on November 7, 2005, and May 6, 2008, its zoning enforcement officer (hereinafter referred to as “ZEO”) ordered the defendant to cease and desist her violations and that the defendant failed to do so.  Id., at ¶¶ 9, 11.

The defendant filed a revised special defense to the complaint, claiming:

“The enforcement of the regulations, as sought in this case, constitutes a conscious, unequal and discriminatory enforcement of the regulations as to the defendant and is a violation of her rights under the constitutions of the United States and the State of Connecticut, denying the defendant equal protection under the law.   Additionally, the enforcement of the regulations, as sought in this case, violates General Statutes § 8-2.   Specifically, on March 7, 2007, the plaintiff changed the zoning classification of properties which are adjacent to the defendant's property and are owned by George Mattern and Harry Prosser.   These properties were previously classified as residential and on said date were rezoned as commercial.   The defendant requested her property be included in the change and her request was denied.   Had the defendant's property been subject to the aforementioned zone change to commercial, it would have had the effect of legalizing the conduct of the plaintiff now seeks to enjoin.   This discriminatory and nonuniform zoning has been patently arbitrary, unreasonable, illegal or in abuse of its discretion.”   See Defendant's Revised Special Defense.

On May 27, 2010, the plaintiff filed a motion to strike the revised special defense.   In its memorandum in support of its motion to strike, the plaintiff claimed (1) that because the defendant did not file an administrative appeal in conjunction with the 2005 and 2008 letters, or at the time of the 2007 zone change, she is now precluded from raising her special defense of selective enforcement amounting to a denial of equal protection, and (2) the plaintiff has not stated a valid special defense.   See Plaintiff's Motion to Strike dated May 27, 2010.   The defendant filed an objection in response thereto, which was sustained by the court (Devine, J.) on August 31, 2010.

On September 23, 2010, the plaintiff filed a motion to dismiss the defendant's special defense for lack of subject matter jurisdiction, essentially reiterating the arguments it made in the memorandum filed in support of its motion to strike.   The defendant filed an objection in response thereto on October 13, 2010.

LAW AND ANALYSIS

A. Motion to Dismiss Standard

“[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process, and (5) insufficiency of service of process.”  Connecticut Practice Book § 10-31.  “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessary implied from the allegations, construing them in a manner most favorable to the pleader.”   Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).  “[E]very presumption is to be indulged in favor of jurisdiction.”  Banks v. Thomas, 241 Conn. 569, 586, 698 A.2d 268 (1997).

The plaintiff contends that pursuant to § 11-10 of the Connecticut Practice Book, the defendant's revised special defenses should be dismissed on the grounds that these defenses are precluded for her failure to exhaust administrative remedies.   The plaintiff claims that the defendant failed to exhaust her remedy to appeal a 2005 and 2008 cease and desist order requiring her to remove automobiles from her property.   The defendant argues that the letters sent to her were in fact not cease and desist orders but letters stating that “failure to comply would result in referral to the town attorney.”   The defendant further argues that the ZEO letters do not use the words “cease and desist” nor was there any reference to appellate rights.   The court must first determine whether these letters are in fact “orders” or “decisions” of the ZEO requiring appeal to the Zoning Board of Appeals.   See General Statutes § 8-7.   In Holt v. Zoning Board of Appeals, 114 Conn.App. 13, 968 A.2d 946 (2009), the Appellate Court held:

“[T]he determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8-7 depends on the particular facts and circumstances of each case;  id., 20”;  and stressed that not “all letters issued by zoning enforcement officers interpreting zoning regulations, and applying them to specific situations are ․ appealable pursuant to § 8-7.”  Id., 22.   The plaintiff's motion to dismiss the special defense based upon the failure to appeal the 2005 and 2008 ZEO letter must fail.  “[T]he proper procedure for attacking a special defense used as a bar to an action is either a motion to strike or a motion for summary judgment, even though, in the past, special defenses have been challenged by a motion to dismiss where no objection has been taken to that procedure.”   Dominion Nuclear Connecticut, Inc. v. Waterford, Superior Court, judicial district of New London, Docket No. CV 03 0566126 (September 23, 2004, Aronson, J.).   Additionally, as noted in Dominion, “[t]he issues raised by the special [defense] are not jurisdictional in nature but rather issues of law for this court to decide.”  Id. While the issues in Dominion are different from the present controversy, the trial court must review the content of the ZEO's letter as to whether, as a matter of law, they comply with the requirement of § 8-7 concerning the right and obligation to appeal and exhaust administrative remedies.

The remaining claim of the plaintiff as to dismissal of the special defense deals with the defendant's failure to appeal the Planning and Zoning Commission's zone change decision that did not include the defendant's property.   The plaintiff contends that the motion to dismiss must be granted because the defendant has failed to appeal the legislative decision denying her request to rezone her property by way of an appeal to the Superior Court pursuant to General Statutes § 8-8(b).  The pleadings do not state whether the defendant had in fact made application for a rezone change for her property or merely objected to the actions of the Planning and Zoning Commission in granting of a zone change for property, not including her land.   In a motion to dismiss, the court cannot accept any evidence outside the record and must not decide the merits of the case.  Standard Tallow Corp. v. Jordy, 190 Conn. 48, 54, 459 A.2d 503 (1983).   A speaking motion to dismiss “has always been a classic, fatal flaw.”   Turner Construction Co. v. Eppoliti, Inc., Superior Court, Docket No. CV 96 0323118, judicial district of Danbury (January 8, 1997, Moraghan, J.)

Furthermore, selective enforcement of zoning regulations with the proper facts alleged and proven, is a valid defense to an action seeking to enforce zoning regulations.   R. Fuller, 9A, Connecticut Practice Series:  Land Use Law and Practices (3d Ed.2007) § 41.5;  Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983).   The defendant shall be left to prove a violation of her right to equal protection under the law and the obligation to prove arbitrary discrimination inimical to constitutional equality.   See Kroll v. Steere, 60 Conn.App. 376, 385, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).

ORDER

The plaintiff's motion to dismiss is hereby denied.

Devine, J.

Devine, James J., J.