Jeanne F. Shuster v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 168, 170

INTRODUCTION and BACKGROUND

The plaintiff has filed a Five–Count complaint containing causes of action to quiet title, inverse condemnation, unfair trade practices as to Fountain Lake, LLC, unfair trade practices as to the City of Ansonia, and application to lay out a highway pursuant to Gen.Stat. Sec. 13a–63.

The plaintiff owns a lot referred to as the Shuster Lot noted in a subdivision of Fountain Lake Commerce Park (Commerce Park) in the City of Ansonia.   The property was part of the Fountain Lake Commerce Center noted in the 1991 Project Plan approved by the City of Ansonia.   The property had been re-zoned as a Commerce Park District.   The project contained two parcels, that is, the plaintiff's property and the property owned by the defendant, Fountain Lake, LLC. The defendant purchased the Fountain Lake property in June 2006 and thereafter entered into a Land Disposition Agreement and an amendment to the Land Disposition Agreement dated September 20, 2006.   The plaintiff's parcel which is the second property within the Commerce Park development was owned by George Shuster and at his death passed to Jeanne Shuster, the plaintiff.

The properties combined made up the Commerce Park development which entered into agreements with the State of Connecticut Department of Economic Development (DECD) in 1991.   Thereafter the property was also subject to Assistance Agreements with the State of Connecticut in 1992 and 1997.

After the purchase of the property by Fountain Lake, LLC, there were applications for development of the property to the various commissions with be City of Ansonia.   The Project Plan submitted by the defendant Fountain Lake, LLC included the laying out of a street which did not include a connection with the Shuster property.   The plaintiff contends that the approval for development for Fountain Lake, LLC has eliminated its access to the main street and thus leaves its property virtually landlocked.   The plaintiff contends that the Plan of Conservation and Development for Ansonia intends that the Shuster Lot should be developed consistent with the Commercial Park which can only be accomplished if it has road access to Great Hill Road. This requires access over the Developer's (Fountain Lake, LLC) Access Road. In order to provide the access, the plaintiff contends that it requested that the City of Ansonia through its mayor and board of aldermen lay out the road between Shuster Lot and the Developer's Access Road. The plaintiff contends that there has been no response and thus a refusal to lay out this Road. Thus, the plaintiff argues that they can make an application for the City to lay out the road pursuant to 13a–63 of the Connecticut General Statutes.

The defendant has raised a jurisdictional question in relation to Count Five of the Complaint.   In particular, the defendant alleges that the plaintiff failed to make an application to the selectmen to lay out the road in question and therefore the selectmen have not neglected or refused to lay out the road which would give the court jurisdiction to hear the claim.   The defendant argues that there is a distinction between the request to the city and the selectmen as identified in the statute.   If the court agrees, the defendant contends a dismissal would be the appropriate relief.

The court, Hiller, J. ordered that the parties submit briefs on the issue raised by the parties of subject matter jurisdiction.   The defendants, City of Ansonia and the Planning and Zoning Commission of the City of Ansonia contend that the court does not have a subject matter jurisdiction because the plaintiff has failed to apply to the selectmen to lay out the highway and failed to allege that the selectman have improperly neglected and refused to lay out the highway.   The plaintiff and the defendants submitted memorandum dated July 15, 2013 in regard to the claim of subject matter jurisdiction and the plaintiff submitted a reply brief dated July 15, 2013.

DISCUSSION

GENERAL LAW

“A motion to dismiss ․ properly attacks 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.”  (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006);  see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005);  Filippi v. Sullivan, 273 Conn. 1, 866 A.2d 599 (2005).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court 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.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “[J]urisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.”  (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179 554 A.2d 728 (1989).  “The use of the motion to dismiss is ordinarily limited by Practice Book §§ 10–6, 10–7, 10–30 and 10–32, which together require that a motion to dismiss be the first pleading filed in response to the complaint and that it be filed within thirty days of the filing of an appearance.   If the motion to dismiss is not filed according to those requirements, then any challenges on the grounds of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process are deemed waived.”  Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).

STATUTORY CLAIM

The defendants contend that the plaintiff's action must fail because she did not serve the application to lay out a highway upon the board of alderman of the City of Ansonia.   In support of this claim the defendants rely upon Waterbury v. Darien, 8 Conn. 162 (1836), and Torrington v. Nash, 17 Conn. 197 (1845).   Each of these cases provided that the request and the response regarding the laying out of streets must be directed to the Selectman of the town.   The plaintiff provides argument of a number of reasons that the defendants' position must fail.   She indicates that the City of Ansonia does not have selectmen and it is a board of aldermen;  that the City of Ansonia has the statutory power to layout highways pursuant to C.G.S. § 7–148(c)(6)(C)(i);  that the City of Ansonia is the proper party to lay out the highway and the plaintiff gave notice to the agent for the Ansonia Board of Aldermen by way of correspondence to their legal counsel;  and that the case law cited by the defendants is affected by the changes in law which addresses the statutory power to layout highways.

General Stat. § 13a–63 states in part:  “When the selectmen of any town refuse to lay out any necessary highway or to make any necessary alterations in any existing highway, ․ any person may prefer an application therefore to the superior court for the judicial district in which such town is located ․” In the case law cited by the defendants, the courts very clearly determined that the statute requires that the party requested of the selectmen and that the selectmen refused to layout the highway.   However, the cases cited by the defendants were decided well before the changes in the law affecting highways and the authority to layout highways was established by C.G.S. § 7–148(c)(6)(c)(i) which specifically addresses the scope of “municipal” powers.   The enactment of these powers well after the decisions upon which the defendants rely impacts the argument of the defendants.   The defendants attempt to strictly construe the statute such that only the selectman are the authority for the laying out of the highways.   However, the powers given to the municipality and in part the Charter of the City of Ansonia along with the facts of this case expand upon the manner in which the statute should be interpreted.   The decision of the court in Town of Torrrington v. Nash, supra, 17 Conn. 200, recognizes the limited nature of the statute when it states “We have no statute authorizing towns, as such to lay out highways, but the selectman are constituted an independent board, to which, in the first instance, application is made.”   These words recognize that the decision is based upon the law as it existed which did not give the authority to any other body.   However, the law has a broader approach to the authority of a municipality giving it authority to layout a highway.   The notice to the board through counsel in the instant action has some impact upon the notice.   It is also important for purposes of this argument that there are vast changes in the original development plans which received various city approvals and the law which must have an impact upon the application of C.G.S. § 13a–63.

The instant action has a long history related to development of this property.   The original discussion concerning the development involved a change of the properties owned in part by the plaintiff's husband George Shuster to a zone entitled Commercial Park District.   In 1992 the parties entered into agreements for development with the City of Ansonia.   The plans for the development of the property included what has been referred to as Access B Road. The City of Ansonia through its mayor entered into Land Disposition agreements related to the development of Fountain Lake Commerce Park. These agreements addressed the layout of streets.   The September 20, 2006 amended Land Disposition agreement specifically states:  “The foregoing Amendments were approved by the Ansonia Board of Aldermen at a public hearing held on September 12, 2006 in Ansonia City Hall.” The agreement also states in relation to the road construction that:  “In the event the Buyer constructs roads in the site that permit access to adjacent properties, the Buyer shall use its best efforts to obtain a contribution of a fair share of the cost of constructing the road in whole or part from the adjacent property owner(s).  Such contribution shall be shared equally between the Buyer and the Seller.”   These agreements incorporate the layout of the streets and the plans submitted recognized the development including streets.   It was not until a portion of the property changed ownership that the development plans changed including the elimination of the connection to access for the plaintiff's property.   In June 2007, the defendant appeared at the Planning and Zoning meeting and requested approval of a site plan for development which for the first time included plans that severed the access to the Shuster lot.   The approval by Planning and Zoning changed the layout of highways which had been previously approved by the board of alderman as part of the development plan.   In August 2007, the plaintiff, through counsel, wrote to the corporation counsel requesting that the plaintiff's road access be approved in accordance with the prior plan of development.   There was no response to the correspondence for access to the road through the easement.   The plaintiff met with the mayor and corporation counsel who represents the board of alderman to discuss the street access.¹  The correspondence and the meeting satisfies the statute and the charter.   The corporation counsel is the designated agent for the Board of Aldermen as well as the Mayor of the City of Ansonia.   However, again there was no response.   As a result, the plaintiff filed a request to have the City of Ansonia layout the streets pursuant to C.G.S. § 13a–63 and filed the notice again with the Corporation counsel.   The defendant's arguments regarding the lack of subject matter cannot succeed in this day and time especially in light of the statute that recognizes other authority to lay out highways.   Not only is the interpretation of the statutory requirements broader in allowing the statute to include the City but it is counterproductive to ignore the attempts by the plaintiff to give notice by writing, meeting and providing detailed maps for the project.   Such an interpretation would not follow Torrington v. Nash which recognizes that there will be a time when it is not just the board or selectmen that will be responsible for laying out the streets.   The factual scenario in this action in which the plaintiff has notified and met with the mayor and the corporation counsel who represents both the city and the board of aldermen satisfies the notice required in the statute.   The letters to the City and given to the Mayor and the Corporation Counsel in addition to the meeting are sufficient to satisfy the requirements for C.G.S. § 13a–63.

Even if the court agreed with the defendants that the allegations should have stated that the Ansonia Board of Aldermen refused to lay out the requested road, given the liberal interpretation that is found in claims of this nature, the court agrees with the plaintiff that the absence of this allegation would be considered a circumstantial error, mistake or defect that would be curable pursuant to Sec. 52–123 and thus such a correction would be permitted.   Andover Limited Partnership I v. Board of Tax Review of the Town of West Hartford, 232 Conn. 392, 398–99 (1995).

CURING THE DEFECT

The plaintiff contends that if the court should determine that the plaintiff has failed to allege that the City of Ansonia and the City of Ansonia Board of Aldermen have refused to lay out a road between the Shuster lot and the Developer's Access Road, the plaintiff is entitled to cure the defect with an Amended Complaint.²  Based upon the above decision the court does not need to address the argument and therefore leaves the plaintiff to determine the action to be taken in regard to amendments to the complaint.

CONCLUSION

The motion to dismiss for lack of subject matter is Denied.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The Charter of the City of Ansonia states:  the board of alderman shall have ․ the sole and exclusive power to lay out, make, or order new highways, streets and bridges within the limits of said city ․ subject to the approval of the mayor ․”.  FN1. The Charter of the City of Ansonia states:  the board of alderman shall have ․ the sole and exclusive power to lay out, make, or order new highways, streets and bridges within the limits of said city ․ subject to the approval of the mayor ․”

FN2. The plaintiff has filed a Motion to Amend the Complaint dated July 15, 2013 which has not been ruled upon because of the pending motion to dismiss..  FN2. The plaintiff has filed a Motion to Amend the Complaint dated July 15, 2013 which has not been ruled upon because of the pending motion to dismiss.

Brazzel–Massaro, Barbara, J.