Mark E. Rabon v. George Benjamin (2015)

MEMORANDUM OF DECISION RE Motion to Strike # 101

Defendants the Town of Preston and the Town of Preston Inland Wetlands and Watercourses Commission move to strike counts three and five of the plaintiff's complaint on the ground that the plaintiff's allegations do not state the elements of the causes of action asserted.   Count three sounds in nuisance, and count five seeks relief pursuant to General Statutes § 22a–16.

“In addition [to the four elements of nuisance], when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance.”  Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).   In count three, the plaintiff does not allege that the Town or the Commission created the condition constituting the alleged nuisance.   Instead, the plaintiff specifically alleges that George and Donna Benjamin created the condition and that the Commission has not taken action to eliminate the nuisance.   The plaintiff has therefore failed to allege a necessary element of his nuisance claim against the Town and the Commission.

Section § 22a–17 requires a plaintiff in a § 22a–16 action to make “a prima facie showing that the conduct of the defendant ․ has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state.”   For example, a municipality may be sued for implementing a development plan that would cause pollution.   Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 805, 925 A.2d 292 (2007).   In the present case, the plaintiff alleges only that the Town and the Commission failed to stop the activities of George and Donna Benjamin;  he does not allege that the Town or the Commission engaged in any conduct likely to pollute, impair, or destroy any natural resources.   Therefore, the plaintiff's allegations in count five fail to state cause of action against the Town or the Commission pursuant to § 22a–16.

For the foregoing reasons, the defendants' motion to strike is granted.

Zemetis, J.

Zemetis, Terence A., J.