Folsom v. Zoning Board of Appeals ( 2015 )

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TIMOTHY T. FOLSOM ET AL. v. ZONING BOARD
OF APPEALS OF THE CITY
OF MILFORD ET AL.
(AC 36390)
DiPentima, C. J., and Gruendel and Lavery, Js.
Argued May 13—officially released September 22, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Hon. Arthur A. Hiller, judge trial
referee.)
Timothy T. Folsom, self-represented, the appellant
(named plaintiff).
Melinda A. Powell, with whom was Allison L. Pan-
nozzo, for the appellees (defendants).
Opinion
LAVERY, J. The self-represented plaintiff Timothy T.
Folsom1 appeals from the judgment of the trial court
granting the motion to strike filed by the defendants,
the city of Milford (city), the city’s zoning board of
appeals (board), and the city’s zoning enforcement offi-
cer. On appeal, the plaintiff claims that the court
improperly granted the motion to strike his third
amended complaint. Specifically, the plaintiff argues
that the court improperly determined that (1) govern-
mental immunity protected the defendants from liabil-
ity, (2) General Statutes § 8-112 does not allow a private
cause of action against a zoning board of appeals, and
(3) General Statutes § 7-465 does not provide for indem-
nification to the plaintiff in connection with a zoning
appeal. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts, as alleged in the plaintiff’s third
amended complaint, and procedural history, as appar-
ent from our review of the record,3 are relevant to our
disposition of this appeal. On August 4, 2011, the city’s
zoning enforcement officer issued a certificate of zoning
compliance to the plaintiff’s neighbor to build a noncon-
forming structure on a vacant lot abutting the plaintiff’s
property. On August 10, 2011, the plaintiff appealed to
the board from the decision of the zoning enforce-
ment officer.
On September 13, 2011, the board held a public hear-
ing on the plaintiff’s appeal from the grant of the certifi-
cate of zoning compliance. At the hearing, the plaintiff
argued that a merger between the vacant lot and the
neighbor’s property prevented the issuance of the certif-
icate of zoning compliance. At the conclusion of the
hearing, the board, finding that a merger had not
occurred, upheld the issuance of the certificate of zon-
ing compliance by the zoning enforcement officer to
the plaintiff’s neighbor. On August 10, 2011, the plaintiff
appealed from the decision of the board to the Superior
Court (administrative appeal). See Folsom v. Zoning
Board of Appeals, Superior Court, judicial district of
Ansonia-Milford, Docket No. CV-11-6008063-S (May
15, 2013).
On February 21, 2013, while the plaintiff’s administra-
tive appeal was still pending, the plaintiff commenced
the present action in the Superior Court seeking reim-
bursement for costs incurred from litigating the admin-
istrative appeal plus interest (reimbursement action).
On May 15, 2013, the court, Hon. John W. Moran, judge
trial referee, sustained the plaintiff’s administrative
appeal. Id. The court reasoned that the ‘‘only evidence
that the board received that could sustain a finding that
merger had not occurred was the [zoning enforcement
officer’s] testimony.’’ Id. In addition, the court stated
that there were only ‘‘two plausible interpretations of
the [zoning enforcement officer’s] testimony . . . both
of which suffer[ed] from fatal legal infirmities’’ and,
thus, ‘‘the remaining evidence does not constitute sub-
stantial evidence capable of supporting a finding that
the lots had not merged.’’ Id.
On October 22, 2013, the plaintiff filed his third
amended complaint in the present reimbursement
action. In that complaint, the plaintiff specifically
alleged that (1) the zoning enforcement officer was
personally liable for failing to enforce the regulations,
(2) the board, collectively, was liable for failing to dis-
qualify itself due to a conflict of interest, and (3) the
city must indemnify the plaintiff in connection with
actions of the zoning enforcement officer and the board.
On November 5, 2013, the defendants filed a joint
motion to strike the plaintiff’s third amended complaint
in the reimbursement action, arguing, in relevant part,
that they were entitled to governmental immunity. On
December 2, 2013, the court, Hon. Arthur A. Hiller,
judge trial referee, granted the defendants’ motion to
strike. In granting the motion, the court held that ‘‘§ 7-
465 does not provide for indemnification of a zoning
board, § 8-21 does not provide for a private cause of
action, and all of the claims against the board and the
[zoning enforcement officer] required discretion and,
as such, entitled all [defendants] to governmental immu-
nity.’’ On December 10, 2013, the plaintiff filed the pre-
sent appeal.4 Later, the plaintiff filed an amended appeal
after the court rendered judgment in the defendants’
favor on the stricken complaint.
The plaintiff’s sole claim on appeal is that the court
improperly granted the defendants’ motion to strike
his third amended complaint. Specifically, the plaintiff
argues that the court improperly determined that (1)
governmental immunity protected the defendants from
liability, (2) § 8-11 does not allow a private cause of
action against a zoning board of appeals, and (3) § 7-
465 does not provide for indemnification of a zoning
board of appeals. We address each of the plaintiff’s
arguments in turn.
The standard of review in an appeal challenging a
trial court’s granting of a motion to strike is well estab-
lished. ‘‘A motion to strike challenges the legal suffi-
ciency of a pleading, and, consequently, requires no
factual findings by the trial court. As a result, our review
of the court’s ruling is plenary. . . . We take the facts
to be those alleged in the [pleading] that has been
stricken and we construe the [pleading] in the manner
most favorable to sustaining its legal sufficiency.’’
(Internal quotation marks omitted.) Ameriquest Mort-
gage Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177,
cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).
At the outset, it is helpful to establish certain legal
principles relevant to our discussion. ‘‘[W]hile a munici-
pality is generally liable for the ministerial acts of its
agents, [General Statutes] § 52-557n (a) (2) (B) explic-
itly shields a municipality from liability for damages
to person or property caused by the negligent acts or
omissions which require the exercise of judgment or
discretion as an official function of the authority
expressly or impliedly granted by law. . . . The hall-
mark of a discretionary act is that it requires the exer-
cise of judgment. . . . In contrast, [m]inisterial refers
to a duty which is to be performed in a prescribed
manner without the exercise of judgment or discretion.’’
(Internal quotation marks omitted.) Thivierge v.
Witham, 150 Conn. App. 769, 775, 93 A.3d 608 (2014).
‘‘Discretionary act immunity reflects a value judg-
ment that—despite injury to a member of the public—
the broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial acts, defined as acts to be performed in a prescribed
manner without the exercise of judgment or discretion.
. . . This is because society has no analogous interest
in permitting municipal officers to exercise judgment
in the performance of ministerial acts.’’ (Internal quota-
tion marks omitted.) Edgerton v. Clinton, 311 Conn.
217, 229–30, 86 A.3d 437 (2014).
‘‘Although the determination of whether official acts
or omissions are ministerial or discretionary is normally
a question of fact for the fact finder . . . there are
cases where it is apparent from the complaint . . .
[that] [t]he determination of whether an act or omission
is discretionary in nature and, thus, whether govern-
mental immunity may be successfully invoked pursuant
to . . . § 52-557n (a) (2) (B), turns on the character of
the act or omission complained of in the complaint.’’
(Internal quotation marks omitted.) Thivierge v.
Witham, supra, 150 Conn. App. 775–76. Additionally,
even though governmental immunity is generally raised
by the defendant as a special defense, ‘‘[w]here it is
apparent from the face of the complaint that the munici-
pality was engaging in a governmental function while
performing the acts and omissions complained of by
the plaintiff, the defendant is not required to plead gov-
ernmental immunity as a special defense and may attack
the legal sufficiency of the complaint through a motion
to strike.’’ (Internal quotation marks omitted.) Violano
v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
In the present case, the plaintiff claims that the court
improperly granted the defendants’ motion to strike on
the ground that governmental immunity protected the
defendants from liability. With respect to the zoning
enforcement officer, the plaintiff specifically argues
that the zoning enforcement officer is not entitled to
governmental immunity because the negligent enforce-
ment of the regulations constituted a breach of a minis-
terial function to which governmental immunity does
not apply. The defendants counter that the zoning
enforcement officer is immune from liability because
the grant of a certificate of zoning compliance is a
discretionary act that required the exercise of judgment.
We agree with the defendants.
Here, it is apparent from the face of the plaintiff’s
third amended complaint that the actions underlying
the defendants’ alleged liability were discretionary gov-
ernmental actions, and therefore the court properly
relied on the doctrine of governmental immunity in
granting the defendants’ motion to strike. See Boning-
ton v. Westport, 297 Conn. 297, 309, 999 A.2d 700 (2010);
Timber Trails Associates v. Planning & Zoning Com-
mission, 99 Conn. App. 768, 775, 916 A.2d 99 (2007).
Nevertheless, the plaintiff contends that where zoning
regulations exist, their enforcement is a ministerial act,
devoid of discretion or judgment. ‘‘[C]onstru[ing] the
[pleading] in the manner most favorable to sustaining
its legal sufficiency,’’ however; Ameriquest Mortgage
Co. v. Lax, supra, 113 Conn. App. 649; we are not per-
suaded by the plaintiff’s argument that the board’s
enforcement of zoning regulations is a ministerial act.
It is well settled that the ‘‘[determination of] whether
a violation of law [exists generally] is deemed to be a
discretionary act’’ for purposes of determining whether
discretionary act immunity applies. Bonington v. West-
port, supra, 309. Indeed, this court has held previously
that ‘‘the power to enforce zoning regulations conferred
by [General Statutes] § 8-12 on town officials is discre-
tionary.’’ Greenfield v. Reynolds, 122 Conn. App. 465,
471–72, 1 A.3d 125, cert. denied, 298 Conn. 922, 4 A.3d
1226 (2010). The court in Greenfield reasoned that ‘‘[§]
8-12 simply provides a means by which authorized par-
ties may enforce zoning regulations. It does not provide
a rigid, ‘prescribed manner’ by which the authorized
‘officer or official board or authority designated therein’
must enforce zoning regulations.’’ Id., 472. Accordingly,
the court in this case concluded correctly that the zon-
ing enforcement officer was entitled to governmental
immunity.
Likewise, the plaintiff’s third amended complaint
failed to state a legally sufficient claim against the
board, on the basis of the board’s alleged failure to
identify a conflict of interest, because the identification
of a conflict of interest is an action that requires the
exercise of discretion, and thus the board is entitled to
governmental immunity.5 We have held previously that
‘‘[t]he decision as to whether a particular interest is
sufficient to disqualify [a member of a local zoning
commission from participating in a commission hearing
or decision on a matter] is necessarily a factual one
and depends on the circumstances of the particular
case.’’ (Internal quotation marks omitted.) Timber
Trails Associates v. Planning & Zoning Commission,
supra, 99 Conn. App. 775. Accordingly, because the
identification of a conflict of interest requires the use
of judgment exercised on a case-by-case basis, such
action is discretionary. See Thivierge v. Witham, supra,
150 Conn. App. 775. Therefore, taking the facts to be
those alleged in the third amended complaint; see
Ameriquest Mortgage Co. v. Lax, supra, 113 Conn. App.
649; it is apparent that the board’s determination that
a conflict of interest did not exist was discretionary.
As a result, the court correctly granted the defendants’
motion to strike as to the board.
The plaintiff argues, however, that § 52-557n (c) con-
tains an exception to governmental immunity that
applies where the action of a municipal board, even if
discretionary, violates a code of ethics.6 The plaintiff
alleged in his third amended complaint that the board
violated the ethical requirements of § 8-117 by failing
to disqualify itself at the hearing. The plaintiff further
alleged that a personal conflict of interest resulted from
the board’s involvement in a separate action. See foot-
note 5 of this opinion. We are not persuaded.
First, the plaintiff has not alleged a legally sufficient
claim of personal interest in order to state a claim under
§ 8-11. ‘‘A personal interest, we have said, is a personal
bias or prejudice which imperils the openmindedness
and sense of fairness which a zoning official in our
state is required to possess.’’ (Internal quotation marks
omitted.) Nazarko v. Conservation Commission, 50
Conn. App. 548, 552, 717 A.2d 850, cert. denied, 247
Conn. 940, 723 A.2d 318 (1998). Furthermore, when
analyzing whether an alleged conflict of interest exists,
we are mindful that ‘‘[l]ocal governments would . . .
be seriously handicapped if any conceivable interest,
no matter how remote and speculative, would require
the disqualification of a zoning official.’’ Anderson v.
Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16
(1968). The only allegations of a personal conflict of
interest in the plaintiff’s third amended complaint relate
to the zoning enforcement officer’s appeal from a deci-
sion of the board in an unrelated case. Even when we
construe the third amended complaint in the manner
most favorable to sustaining its legal sufficiency, these
allegations do not amount to a personal conflict of
interest. Rather, these allegations relate to the profes-
sional duties of the zoning enforcement officer and the
board members, and do not amount to impermissible
personal bias that would disqualify the entire board
from hearing any case brought by the zoning enforce-
ment officer.
Additionally, it is apparent from the face of the third
amended complaint that the plaintiff does not allege
a legally sufficient cause of action against the board
because § 52-557n (c) does not authorize a private cause
of action against the board as a whole. Section 52-557n
(c) refers to the personal liability of an individual board
member ‘‘if such person’’ engages in proscribed con-
duct. Here, the plaintiff directs his allegations against
the board as an entity, and not to any of its members
individually. As a result, he has failed to state a claim
under § 52-557n (c) that would subvert governmental
immunity. We therefore conclude that the court cor-
rectly granted the defendants’ joint motion to strike
for failure to state a claim upon which relief could
be granted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although Laurie E. Folsom was identified as a plaintiff in the trial court,
she is not named as a plaintiff in this appeal. We therefore refer in this
opinion to Timothy T. Folsom as the plaintiff.
2
The plaintiff’s third amended complaint and appellate brief identify Gen-
eral Statutes § 8-21 as the applicable conflict of interest statute in the present
action. Section 8-21, however, pertains to conflicts of planning commissions,
not zoning boards. See General Statutes § 8-21 (‘‘[n]o member of any planning
commission shall participate in the hearing or decision of the commission
of which he is a member upon any matter in which he is directly or indirectly
interested in a personal or financial sense’’).
General Statutes § 8-11, however, is the applicable statute in the present
case. Section 8-11 provides in relevant part: ‘‘No member of any zoning . . .
board and no member of any zoning board of appeals shall participate in
the hearing or decision of the board . . . of which he is a member upon
any matter in which he is directly or indirectly interested in a personal or
financial sense.’’
Accordingly, we will refer in this opinion to § 8-11 as we consider the
claim raised by the plaintiff in this appeal. See Mourning v. Commissioner
of Correction, 120 Conn. App. 612, 624–25, 992 A.2d 1169 (construing pro
se pleadings liberally), cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010).
3
We take judicial notice of the plaintiff’s Superior Court filings in the
present case and related actions filed by the plaintiff. See State v. Lenihan,
151 Conn. 552, 554, 200 A.2d 476 (1964).
4
On April 24, 2014, this court remanded the matter to the trial court to
resolve the issue of whether judgment had been rendered on the stricken
complaint. On May 29, 2014, the defendants filed a motion for judgment
pursuant to Practice Book § 10-44. On July 28, 2014, after hearing arguments,
the trial court granted the defendants’ motion for judgment. On August 4,
2014, the plaintiff filed an amended appeal.
5
The plaintiff’s third amended complaint alleged that in early July, 2011,
prior to the plaintiff’s board hearing, the zoning enforcement officer appealed
from a decision of the board to the Superior Court.
That separate administrative appeal did not involve the plaintiff. Our
discussion of that administrative appeal is relevant only to the allegation
by the plaintiff that the same zoning enforcement officer and board were,
at the time of his hearing, adverse parties to a separate administrative appeal,
thereby creating a conflict of interest.
6
General Statutes § 52-557n (c) provides in relevant part: ‘‘Any person
who serves as a member of any board, commission, committee or agency
of a municipality and who is not compensated for such membership on a
salary or prorated equivalent basis, shall not be personally liable for damage
or injury . . . resulting from any act, error or omission made in the exercise
of such person’s policy or decision-making responsibilities on such board,
commission, committee or agency if such person was acting in good faith,
and within the scope of such person’s official functions and duties, and was
not acting in violation of any state, municipal or professional code of ethics
regulating the conduct of such person . . . .’’
7
General Statutes § 8-11 prohibits a zoning board member from hearing
or deciding ‘‘any matter in which he is directly or indirectly interested in a
personal or financial sense. . . .’’ The plaintiff has not alleged that the
board should have disqualified itself due to a financial conflict of interest.
Accordingly, we address only the alleged personal conflict of interest.