MATEO v. MANN, No. CV 08-5022203 (Apr. 1, 2009)

SATTER, JTR.

The defendants move to strike counts Two and Three of plaintiff's revised and amended complaint.

Count Two of plaintiff's complaint is headed "Violation of Conn. Gen. Stat. § 22a-16." Paragraph 13 alleges: "Effluent from the greenhouse on the Defendants' property flows into the wetlands and contains excessive concentration of phosphorus which are harmful to the wetlands, encourage growth of invasive species and are a source of unreasonable pollution." Paragraph 14 alleges: "The construction on wetlands soil or within the Upland Review Area of the wetland, the dumping of fill in wetlands and the flow of effluent into the wetlands is a violation of Conn. Gen. Stat. § 22a-16 because it unreasonably pollutes, impairs or destroys those wetlands and impairs their function."

As its first attack on Count Two, defendants contend that it is legally insufficient because it fails to cite any legal standard in support of violation of § 22a-16, for excessive levels of phosphorus under the Connecticut Environmental Protection Act Regulations (CEPA). They argue that conduct constitutes unreasonably polluting only when it fails to comply with an environmental legislative and regulatory scheme.

In support of this argument they cite Waterbury v. Washington, 260 Conn. 506, 557 (2002):

We conclude that when as in the present case . . . the legislature has enacted an environmental legislative and regulatory scheme specifically designed to govern the particular conduct that is the target of the action, that scheme gives substantive content to the meaning of the word `unreasonable' as used in the context of an independent action under CEPA. Put in CT Page 6037 another way, when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme.

Put still another way, it would be anomalous to conclude that the legislature has, as a general matter, enacted in an environmental regulatory scheme that runs on two different tracks with respect to the same conduct: one that requires compliance with specific criteria promulgated by a regulatory agency pursuant to a specific legislative enactment; and a second that lodges in a court the determination of whether the same conduct comes within the very general standard of reasonableness, irrespective of whether it is in compliance with these specific criteria." (Emphasis added).

Defendants contend that a regulatory scheme is in place, citing Reg. Conn. State Agencies § 22a-133k-1, et. seq. and annexed appendices. Those regulations list hazardous chemicals but do not include phosphorus. Thus, defendants contend that phosphorus is not within the regulatory scheme and its use is therefore not unreasonable.

However, those regulations implement § 22a-133k, which relate to remediation and pollution of hazardous waste sites. No administrative regulation under § 22a-16 detail what constitutes unreasonable pollution.

The Waterbury v. Washington, supra repeatedly refers to a regulatory scheme that "specifically" governs the conduct that the plaintiff claims constitutes unreasonable pollution. In 50 Day Street Associates v. Norwalk Housing Authority, No. X08 CV 020191396-S, judicial district of Stamford-Norwalk (May 17, 2005, Adams, J.), 2005 W.L. 1394772, the court held that one way to prove unreasonable pollution is by establishing a violation of a specific Department of Environmental Protection standard. In that case, the specific standard applied was a violation of § 22a-452 providing for reimbursement for remediation of oil pollution. There are no such administrative regulations under § 22a-16. The court is left to itself give meaning to this statute.

The absence of a comprehensive legislative and regulatory scheme does not mean an action under § 22-16 is unavailable. Section 22a-20 CT Page 6038 provides: "Nothing herein shall prevent the maintenance of an action, as provided in said sections [§§ 22a-14— 22a-20] to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights." As stated in Committee to Save Guilford Shoreline, Inc. v. Arrow Paving, CV 06-4020284-S, judicial district of New Haven (March 2, 2007, Corradino, J.), 2007 WL 901573, "[G]iven the broad language of § 22a-16 and the protective policy of CEPA, it cannot be said that in the absence of such a regulatory scheme or statute as just described, action cannot be taken to protect the environment. How else to explain the language of § 22a-20 . . . That language . . . at least suggests there exists another universe of injunctive protection for our environment areas not covered by a specific regulatory scheme or controlled by a detailed statutory enactment."

Thus, the court concludes Count Two states a valid cause of action without alleging standards that constitute unreasonable pollution.

As its second attack on Count Two, defendants contend that § 22a-16 upon which that count is based, is unconstitutional because of void for vagueness.

The initial question presented is whether a motion to strike is a proper vehicle for testing a statute's constitutionality. No appellate court in Connecticut addresses the subject, and Superior Court cases on the issue are divided evenly. Three cases hold that the motion to strike is improper when based on the claim of unconstitutionality of a statute. Liberty Mutual Insurance Co. v. Stafford-Higgins Industries, CV 92123023, judicial district of Stamford/Norwalk at Stamford (October 17, 1992, Sylvester, J. [7 Conn. L. Rptr. 849]; Kelvin Corp. v. Foley, CV 0292233, judicial district of Fairfield at Bridgeport (July 15, 1992, Lois, J.), 7 Conn. L. Rptr. 64; Lee v. Empire State Nut Co., CV 870334199, judicial district of Hartford (October 9, 1987, Norko, J.).

Three Superior Courts support the proposition that a challenge to the constitutionality of a statute can be raised in a motion to strike. Bristol Hospital, Inc. v. Smith, CV 065002055, judicial district of New Britain (May 4, 2007, Prestley, J.), 43 Conn. L. Rptr. 339; Diveney v. Smith, CV 910287011, judicial district of Fairfield (February 26, 1992, Katz, J.), 6 Conn. L. Rptr. 82; Washburn v. Stagis, CV 307493, judicial district of Hartford (December 20, 1985, Dorsey, J.), 12 CLT No. N.12, 31.

The court concludes that the cases in favor of allowing a motion to strike to contest the constitutionality of a statute are more CT Page 6039 persuasive. The Practice Book Section 10-39 provides that a motion to strike is appropriate whenever any party wishes to contest the legal sufficiency of the allegations of a complaint. In the court's opinion, legal sufficiency can include the court determining whether or not the statute upon which the cause of action is brought is constitutional.

Defendants contend § 22a-16 is unconstitutionally void for vagueness because the term "unreasonable pollution" provides no standard.

In assessing whether a statute passes constitutional muster, our courts employ the principle that "the party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality." State v. Ross, 230 Conn. 183, 236 (1994), cert. denied, 513 U.S. 1165 (1995). As stated in State v. Payne, 240 Conn. 766, 777 (1997), "[T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement." Ferrieira v. Pringle, 255 Conn. 330, 356 (2001) notes that many statutes have some inherent vagueness, for in most English words and phrases there lurk uncertainty. It holds that references to judicial opinions involving a statute, the common law, legal dictionaries or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning.

In another context, the Connecticut Supreme Court has rejected the claim that the term "unreasonable" is unconstitutionally vague. See State v. Linares, 32 Conn.App. 652 (1993), affirmed in part and reversed in part, 232 Conn. 345 (1995). Further, the concept of unreasonableness is well known to our courts in contexts similar to the issues in this case. Indeed, "unreasonableness" constitutes an essential element in private nuisance claims, and has been construed and interpreted in cases raising claims of land use so that it provides a sufficient guidance to fact finders in that context. Pestey v. Cushman, 259, 345, 358-62 (2002).

Finally, the Supreme Court as well as lower courts have issued numerous opinions construing the word "unreasonable" as used in Section 22a-16. See Save Guilford Shoreline, supra; Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 503 (1978); Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 136.

This court concludes that § 22a-16 is not unconstitutional by reason of vagueness.

CT Page 6040

Count Three of the revised, amended complaint alleges the creation of a private nuisance. Paragraph 13 provides: "By negligently draining unreasonably polluted effluent into the wetlands on Plaintiff's property, Defendants have degraded the quality of the wetlands, fostered the growth of invasive species." Paragraph 14 alleges: "Effluent negligently released from Defendants' drainage system has impacted Plaintiff's land and endangered the wetlands located on that property." Paragraph 15 alleges: "The condition created by the Defendants constitutes a private nuisance on the Plaintiff's property."

Defendants contend that Count Three is legally insufficient because the plaintiff has failed to state the standards, including CEPA regulations, indicating what constitutes unreasonably high levels of phosphorus.

To prove a cause of action of private nuisance, the plaintiff must establish that (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was a proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable or unintentional and defendant's conduct was negligent or reckless. 4 Restatement (Second), of Torts, Section 822. Pesty v. Cushman, 259 Conn. 345, 358 (2002). The cases do not require that the plaintiff allege the standards on which he bases his claim that the defendants' conduct unreasonably interfered with the use of his property. By alleging, as plaintiff here does, that effluent negligently released from defendant's drainage system endangers the wetlands on plaintiff's property, plaintiff states a valid cause of action of private nuisance.

Based on the foregoing, the motion to strike is denied.