LAKE CTY. ASSESSOR v. AMOCO SULFUR RECOVERY

COSGROVE, J.

On November 9, 2009, the defendant Joseph Larkin, the zoning enforcement officer for the Town of Stonington filed the present motion to strike counts forty-one and forty-two of the plaintiffs' complaint on the ground that allegations of the defendant's failure to enforce zoning regulations do not state a claim for private nuisance, and counts forty-three and forty-four of the plaintiffs' complaint on the ground that failing to enforce regulations is not a positive act necessary to sustain a public nuisance claim against a public official. The motion is accompanied by a memorandum of law. On November 23, 2009, the plaintiffs filed an objection and memorandum of law in opposition to the defendant's motion to strike.

On September 2, 2009, the plaintiffs, Mark Tebbets and Margaret Tebbets, filed a forty-eight count complaint against the defendants, the Oliver Group, LLC (the Oliver Group), EOF Realty, LLC (EOF), the town of Stonington, Edward R. Haberek, Jr., William Haase and Joseph M. Larkin. In counts forty-one through forty-four, the plaintiffs allege the following facts against Larkin. The plaintiffs are the owners of a home located at 14 Sunrise Avenue in Pawcatuck, which is adjacent to 595 Greenhaven Road in Stonington (the Greenhaven Road property). Both properties are located in a residential district. The Greenhaven Road property is currently owned by EOF and leased by the Oliver Group, a marketing and business development company.

In 1975, the Stonington zoning board granted a variance to permit a light manufacturing use on the Greenhaven Road property. In granting the variance, the board stipulated that: (1) "[a] buffer zone must be constructed according to the satisfaction of adjacent property owners"; (2) "[t]he noise is not to exceed the noise decibel level CT Page 14597 that is consistent with light manufacturing to be determined by the [z]oning [e]nforcement [o]fficer or his delegate"; and (3) "[l]ight manufacturing of electronics operations is the only use of this building." At that time, the property had no parking area; the parking area for this building was located across the street at 596 Greenhaven Road. In 1977, the board granted a variance to permit light manufacturing of medical sponges and disposables. This use continued until EOF purchased the Greenhaven Road property without the parcel at 596 Greenhaven Road. Thereafter, the Oliver Group commenced operation of its business on the Greenhaven Road property.

Since May 2005, the defendant has "allowed EOF and/or [the Oliver Group]" to violate various zoning regulations, to illegally park vehicles on the Greenhaven Road property, to impermissibly use the building on their property for commercial offices and an apartment, to impermissibly expand the building size and the outdoor storage area, and to emit excess noise from their property. Furthermore, the defendant has "failed to require EOF and/or [the Oliver Group]" to provide or maintain an adequate buffer between its business and the plaintiffs' adjoining residential property or to provide for adequate drainage, which has endangered the plaintiffs' drinking-water well.

On May 14, 2008, the defendant granted EOF's zoning permit application for the reconfiguration of a parking lot and associated landscaping on the Greenhaven Road property despite the fact that parking is not allowed on this property. Moreover, on February 19, 2009, EOF and/or the Oliver Group removed trees and shrubs that served as the buffer between the Greenhaven Road property and the plaintiffs' property. While the defendant ordered EOF and the Oliver Group to restore the buffer, he failed to require them to obtain the approval of the adjacent property owners concerning their restoration plan. Furthermore, the defendant has approved or allowed EOF and/or the Oliver Group to plant an inadequate buffer that fails to provide effective visual and noise insulation.

As a consequence of the foregoing, the plaintiffs allege, "[a]t all hours of the day and night [they are] continually disturbed by the business activities being carried on at . . . [the] Greenhaven Road [property], including illegal vehicle parking, excess noise, excess light, overnight truck parking, running diesel engines during overnight hours, and the knowledge that these activities are in contravention of [t]own zoning regulations." As a result of these disturbances, the plaintiffs have suffered injuries including emotional distress, anxiety, panic attacks, stress, aggravation, frustration and physical sickness. In counts forty-one and forty-two of the plaintiffs' complaint, the plaintiffs allege claims of private nuisance against the defendant. In CT Page 14598 counts forty-three and forty-four, the plaintiffs allege claims of public nuisance.

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). As a result, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

In his memorandum of law in support of the motion to strike, the defendant argues that in order to maintain a cause of action for private nuisance, a defendant "must have control over the property at issue." The defendant contends that "zoning enforcement power" does not constitute control because "[e]nforcement officials have no direct control over alleged violators to prevent them from disobeying laws and regulations . . . [and that] public officials such as zoning enforcement officers are actually constrained by other considerations, such as a property owner's constitutional rights, in what enforcement actions they may take." With regard to the plaintiffs' public nuisance claims, the defendant argues that "[f]ailure to enforce regulations or other nonfeasance has uniformly been held to be insufficient to support a public nuisance claim against a municipal official," because it fails to demonstrate the requisite "positive act." Furthermore, the defendant CT Page 14599 maintains that "failure to allege a sufficient positive act also shows the lack of requisite control to satisfy the elements of a private nuisance claim."

In response, the plaintiffs counter that "[o]wnership or occupancy of the property is not required for control" and that the defendant "controlled the [Greenhaven Road property] in that he had the power to prevent the nuisance from occurring." The plaintiffs contend that "[b]y exercising de facto control over the property and intentionally failing to put a stop to continuing violations of which he was aware, [the defendant] may be found liable for private nuisance." The plaintiffs further argue that they "are not alleging mere negligent failure to enforce zoning regulations, but an intentional failure to do so [and that] [i]ntentionally refusing to do one's job can constitute a positive act within the meaning of nuisance law," sufficient to establish a claim of public nuisance.

There are two types of nuisance claims recognized in Connecticut: public and private. See Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002). "Although there are some similarities between a public and a private nuisance, the two causes of action are distinct . . . The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names . . . Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety . . . Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." (Citations omitted; internal quotation marks omitted.) Id., 357.

"[The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages . . . In addition, 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 CT Page 14600 constituting the nuisance." (Citation omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010) (concluding that allegations that the municipal defendant "knew or should have known of [a] tree's dangerous propensities" were insufficient to state a viable cause of action in public nuisance because it did not allege a positive act). "[F]ailure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996); see also Wright v. Brown, 167 Conn. 464, 470-71, 356 A.2d 176 (1975) (alleged release of dog by dog warden prior to expiration of quarantine period did constitute positive act because it was more than "passive negligence").

Although the plaintiffs are correct in noting that, in limited circumstances, "a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance"; Keeney v. Old Saybrook, supra, 237 Conn. 166; the alleged failures to act by the defendant in the present case do not rise to the level of intentional misconduct discussed in Keeney. In Keeney, the Supreme Court considered alleged statutory violations by the town of Old Saybrook through its failure to implement a sewer avoidance program and failure to build a regional wastewater treatment facility as set forth in four orders issued by the Department of Environmental Protection; three orders to which the town had lost any rights to contest through its failure to take timely appeals. In determining that the aforementioned statutory provisions incorporated common law nuisance principles, the Supreme Court remanded the case for articulation as to whether the town's conduct rose to the level of "intentional conduct" in order to sustain the statutory violations. Id., 167. Accordingly, it is not clear whether the town's failure to abide by the orders at issue in that case would satisfy the requirements of public nuisance. Further, Keeney was decided "in light of the strong public policy manifested by the environmental protection statutes" and did not decide "what the law of municipal liability may be in other contexts . . ." Id., 166. Moreover, Keeney expressly reiterated that a plaintiff must allege a positive act in order to sustain a public nuisance claim against a municipal defendant. Id., 164.

In the present case, the plaintiffs have alleged a public nuisance against the defendant, a municipal employee acting within the scope of his employment. Therefore, under the common law, the plaintiffs were required to allege that the defendant, "by some positive act, created CT Page 14601 the condition constituting the nuisance." See Picco v. Voluntown, supra, 295 Conn. 146. The plaintiffs have failed to allege such a positive act. There are no allegations in the plaintiffs' complaint that the defendant did something to cause the alleged nuisance. The allegations in counts forty-three and forty-four of the complaint primarily concern the failure to act on the part of the defendant. Specifically, the plaintiffs allege that the defendant " allowed EOF and/or [the Oliver Group]" to commit actions that allegedly constituted a public nuisance or that the defendant " failed to require EOF and/or [the Oliver Group]" to perform some action to abate an alleged public nuisance. As the Supreme Court has made clear in Picco, these inactions, or failures to act, do not constitute a positive act for purposes of a public nuisance claim. To the extent that Keeney applies in this context, there is no allegation that the defendant's conduct rose to the level of intentional conduct, described in Keeney, nor do any of the plaintiffs' allegations support this proposition. Unlike in Keeney, where the defendant town violated water pollution abatement orders, to which it had acquiesced, the defendant in this case was not required to enforce its zoning regulations in any particular manner, nor had any other government agency ordered it to take any specific actions. Therefore, under Keeney as well, the allegations are insufficient to support a positive act.

The plaintiffs do allege that the defendant acted in that he " granted EOF's zoning permit application" for the reconfiguration of a parking lot and associated landscaping on the Greenhaven Road property. Nevertheless, the mere granting of a permit is not sufficient to demonstrate a positive act. See Esposito v. New Britain Baseball Club, Inc., 48 Conn.Sup. 643, 645 n. 1, 856 A.2d 535 (2004) (holding that the positive act requirement was met because, in addition to granting the permit, the city cooperated with the operator of the fireworks display and provided police and fire personnel, which allowed the fireworks display to be held). Since the plaintiffs have failed to allege a positive act sufficient to support a claim of liability in public nuisance against the municipal defendant, the defendant's motion to strike as to counts forty-three and forty-four is granted.

The Supreme Court has determined that the four factor test outlined above does not apply to private nuisance claims. Pestey v. Cushman, supra, 259 Conn. 357-58. "The proper focus of a private CT Page 14602 nuisance claim . . . is whether a defendant's conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property . . . [I]n order to recover damages in a common law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence." (Citations omitted.) Id., 360-61. In determining "when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful `user' of that property . . . our cases frequently have applied a functional test . . . A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance . . . [W]hen circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property [is with someone else] does not absolve the defendant of liability for the nuisance." (Citations omitted.) State v. Tipetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183-84, 527 A.2d 688 (1987).

In the present case, the plaintiffs have failed to allege sufficient facts to support a claim of private nuisance. While the plaintiffs have alleged the legal conclusion that the defendant had control over the property, this assertion is based on the alleged fact that he had the power to prevent the nuisance from occurring. The plaintiffs have failed to provide any legal authority for the proposition that zoning enforcement power constitutes control for purposes of establishing a private nuisance claim. Rather, control has most often been found when the municipal defendant owned the property on which the alleged nuisance-causing condition existed. See, e.g., Wheaton v. Putnam, 126 Conn. 330, 335, 11 A.2d 358 (1940) ("[c]ontrol of use or misuse of the dump is in the city as owner of the property"). Moreover, control may be found when the defendant is alleged to have created and maintained the nuisance-causing-condition. See State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 184-85 n. 5 ("a showing that a municipal defendant has created and maintained a nuisance-causing condition may concurrently serve as evidence that it controls the property on which the condition exists").

The plaintiffs have failed to allege that the defendant owns the property on which the alleged nuisance-causing condition existed. Furthermore, as previously discussed with respect to the positive act requirement for the plaintiffs' claim of public nuisance, the plaintiffs have failed to allege that the defendant created and maintained a nuisance-causing condition that would establish a positive CT Page 14603 act. Similarly, the plaintiffs have failed to allege that the defendant created and maintained a nuisance-causing condition that would establish control of the property. Since the plaintiffs have failed to allege sufficient facts to demonstrate that the defendant controlled the premises, the plaintiffs' private nuisance claims are legally insufficient. Accordingly, the motion to strike as to counts forty-one and forty-two is also granted.

For the foregoing reasons, the defendant's motion to strike counts forty-one, forty-two, forty-three and forty-four of the plaintiffs' complaint is hereby granted.

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