Angela Galluzzo et al. v. City of Norwalk et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS NO. 114

The plaintiffs in this case have brought suit against the City of Norwalk and various town employees for monetary damages related to decisions by the City of Norwalk Building Department granting, and then rescinding, building permits to the plaintiffs in 2006.   The plaintiffs allege, inter alia, that these officials of the City of Norwalk acted negligently by issuing, and then rescinding, building permits that the plaintiffs had requested for new construction on land they owned on Winfield Street.   As a direct result of these actions, the plaintiffs allege, the plaintiffs incurred substantial extra and unnecessary costs to complete the construction project.   The defendants are the City of Norwalk, the City of Norwalk Planning and Zoning Commission, and seventeen individuals who were employed in some unstated capacity by the City of Norwalk during the times in question.   The defendants have moved to dismiss the plaintiffs' action on the grounds that the plaintiffs failed to exhaust their administrative remedies before commencing this action in the Superior Court, and, thus, this court lacks subject matter jurisdiction.

FACTS

None of the pleadings in this case are models of clarity or thoroughness, but from the pleadings now on file the court has gleaned the following allegations.   In 2005, the plaintiffs collectively were the owners of a tract of land located on Winfield Street in Norwalk, upon which they wished to renovate an existing residential structure and construct additional residential units.   Starting in the fall of 2005, plaintiff Angela Galluzzo met with officials of the Norwalk's Zoning Department seeking approval of a plan to construct new residential units on the rear of the Winfield Street lot.   One or more of the defendants advised her that the proposed new structure could not be located on the rear of the lot, but instead had to be located on the easterly side of the premises, and, moreover, affixed to the existing residential structure.   For approximately the next six months she met with various Norwalk officials to review her proposed site plan and provide them with all information requested “to obtain zoning approval of the proposed improvements to the Premises.”

The plaintiffs further allege that on March 23, 2006, they received zoning approval for the project, and on March 31, 2006, they received a building permit to construct the new residential units to be located to the side of the existing structure.   Relying on this approval, and in accordance with the building permit just received, the plaintiffs obtained a construction mortgage loan and began construction of the approved structure.

The plaintiffs further allege that shortly thereafter, after receiving inquiries and complaints from neighboring property owners, the Norwalk zoning enforcement officials who had just approved the project determined that the approved structure in fact failed to comply with local zoning regulations.   On August 23, 2006, the enforcement officials issued a cease and desist order to the plaintiffs, ordering them to “bring the new foundation into compliance with the regulations” and “submit an as-built survey that includes certification by a licensed surveyor that the structures, parking spaces and recreation areas are in compliance.”

The plaintiffs allege that they appealed the August 23, 2006 cease and desist order, and at the same time filed a request for a setback variance in accordance with applicable Norwalk Zoning Regulations, both of which were denied.   As a result, according to their complaint, the plaintiffs were required to relocate and rebuild the new structures.   This caused the plaintiffs to incur substantial financial injury for relocation and reconstruction costs, suffer delays leading to loss of use of the property, and lose rental income.   The plaintiffs set forth five grounds for the recovery of monetary damages against the defendants, stated as follows.  “Count One:  Promissory Estoppel against Norwalk.”  “Count Two:  Negligence in the Performance of a Ministerial Act by Employee.”  “Count Three:  Negligence in the Performance of a Discretionary Act by Defendants.”  “Count Four:  Wanton Misconduct by Defendants' Employee.”  “Count Five:  The City of Norwalk was Negligent.”

In their amended memorandum of law in support of their motion (# 116.00), the defendants respond that the plaintiffs had an administrative remedy available to them.   Although not specifically stated, apparently their argument is that the plaintiffs could have filed a second application for a variance.   The defendants further state that not only could the plaintiffs have filed a second application for a variance that would give them the setback relief they requested, they in fact did file a second application, which was granted on July 12, 2007.

The plaintiffs brought companion appeals of the denial of the first variance application before the Superior Court in 2007.   See docket nos.   FST–CV–06–4010567–S and FST–CV–06–4010629–S.   The plaintiffs, however, withdrew their appeals one month after approval of the second variance application, stating in their August 8, 2007 withdrawal motion “the subject of these appeals has become moot.”

Thus, the defendants seem to argue, this court is without subject matter jurisdiction because the plaintiffs failed to exhaust administrative remedies that were available to them.   According to the defendants, “[t]he plaintiffs failed to pursue their appeal of the cease and desist order and denial of the variance to a decision of the Superior Court.”

In both the plaintiff's objection to the motion, as well as at oral argument, counsel for the plaintiffs argues, inter alia, that their claim is for monetary damages sounding in tort, rather than a claim that would, or even could, be addressed by an administrative appeal.   Therefore, according to the plaintiffs, exhaustion of administrative remedies should not act as a bar to their claims.

DISCUSSION

Practice Book § 10–31(a) provides that “[t]he motion to dismiss shall be used to assert [inter alia ] lack of jurisdiction over the subject matter ․” “A motion to dismiss ․ properly attacks the jurisdiction of the court, 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  Southern N.E. Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must ․ take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citations omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).   “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”   (Internal quotation marks omitted.)  Pet v. Dept. of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988).

The court agrees completely with the defendants' proposition, that where administrative remedies are provided by statute or otherwise, a party's failure to take advantage of them deprives a Superior Court of subject matter jurisdiction, even where the claimant is seeking relief that the administrative procedure might not provide, Savoy Laundry, Inc. v. Stratford, 32 Conn.App. 636, 642, 630 A.2d 159 (1993), and Johnson v. Department of Public Health, 48 Conn.App. 102, 710 A.2d 176 (1998).   See also Laurel Park, Inc. v. Pac, 194 Conn. 677, 685 (1984) (“[W]hen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test”);  see also Piteau v. Board of Education, 300 Conn. 667, 678, 15 A.3d 1067 (2011) (“[A] trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum”).

But in the present case it appears that the plaintiffs did exhaust their administrative remedies, and did so by filing a second application for a variance.   That application was granted, and there was, therefore, no reason to proceed further before either the Norwalk Zoning Board of Appeals or the Superior Court for reconsideration of that variance application.

Then, approximately eighteen months after the second application was granted, the plaintiffs filed this action wherein, rather than seeking to overturn the denial of the first variance application or any other relief that the Norwalk Zoning Board of Appeals could have afforded, the plaintiffs sought monetary damages on five distinct causes of action.   Accordingly, the court finds that the plaintiffs' causes of action sounding in tort present a justiciable controversy apart from any statutory or regulatory requirements for administrative action.

CONCLUSION

For the reasons set forth above, the defendants' motion to dismiss (# 114.00) is denied.

By the Court

Anthony D. Truglia, Jr., J.

Truglia, Anthony D., J.