DocketNumber: No. X01 CV 98 0166015
Citation Numbers: 2002 Conn. Super. Ct. 2953
Judges: HODGSON, JUDGE.
Filed Date: 3/18/2002
Status: Non-Precedential
Modified Date: 4/18/2021
At the hearing, the parties agreed that documents appended to their briefs should be admitted as evidence on the factual issues raised concerning jurisdiction. In response to the court's questions at oral argument, counsel requested time to file supplemental briefs, which they duly filed.
Background
In the first count of her complaint the plaintiff, Gloria Palmieri, alleges that the structure on property she owned at 483 East Street in New Haven was damaged by fire on February 13, 1996; and that a building official of the City of New Haven issued a written notice on July 12, 1997, stating that the building was unsafe and that the City would demolish it if she failed to repair or demolish it within thirty days. The plaintiff further alleges that on an unspecified date she notified defendant Clarence Phillips, the building official who had signed the demolition notice, that she intended to repair the building. On August 13, 1997, her attorney, Frank Raio, wrote to Phillips stating that he was representing Palmieri in a lawsuit concerning the damage to her property and asking that Phillips "forbear from any action under these circumstances." In this letter, Attorney Raio stated, "If any further information is requested, please contact the undersigned immediately, as otherwise I will assume that you will not pursue the actions listed in your letter of July 22, 1997." Though the plaintiff alleges in her complaint that her agents "did confirm by writing the agreement entered into with the Defendant, Phillips, that he would forbear from the CT Page 2955 demolition of the Plaintiff, Palmieri's, home," no such letter was presented at the evidentiary hearing on the motion to dismiss. The letter from Attorney Raio dated August 13, 1997, contains no statement that any agreement had been reached concerning the demolition order, and the plaintiff offered no evidence of any actual agreement to Attorney Raio's "assumption." The plaintiff alleges that the City demolished the fife-damaged building on her property on December 3, 1997.
In the first count, the plaintiff alleges that the defendants violated "Connecticut General Statutes Sections 120.1, et. seq., the basic building code of the State of Connecticut." She also alleges that the demolition notice contained false information, incorrectly cited authority, and "failed to provide a provision for objection or appeal." Palmieri also alleges in this count that the defendants negligently ignored her written objection and their alleged agreement to forbear from demolishing the structure.
In the third count, the plaintiff claims that the City violated her right to due process of law under the state and federal constitutions by demolishing the structure on her property.
In the fifth count, the plaintiff claims that the City committed an intentional tort in violation of the due process clauses of the state and federal constitutions when it demolished her property.
In the seventh count, the plaintiff claims that the City issued a tax assessment on the property for 1997-98 and 1998-99 that did not fairly represent the value of the property after demolition of the structure.
Grounds asserted
The defendants assert that this court lacks subject matter jurisdiction over the claims made in the four counts summarized above. In the brief in support of their motion to dismiss, the defendants assert that the court lacks jurisdiction over the first, third and fifth counts because the plaintiff failed to avail herself of a statutory remedy available to her, namely, to appeal to the Superior Court from the finding that the structure was unsafe and should be demolished. Section §
The defendants assert that the court lacks subject matter jurisdiction over the seventh count because the plaintiff failed to avail herself of CT Page 2956 that statutory remedy applicable to tax assessments, Conn. Gen. Stats. §§
The plaintiff takes the position that the first, third and fifth counts may not be dismissed because the defendants are estopped from invoking the claim of failure to exhaust administrative remedies due to the alleged agreement by Phillips not to proceed with demolition.
With regard to the seventh count, the defendants assert that a tax assessment may not be pursued by a direct cause of action but only by pursuit of a statutory appeal pursuant to Conn. Gen. Stat. §§
Standard of review
Practice Book §
Claim of lack of jurisdiction
"Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and CT Page 2957 statutory provisions by which it is created." Lo Sacco v. Young,
In circumstances in which a statute provides for an appeal to the Superior Court, the Connecticut Supreme Court has ruled that a claimant must adhere to the requirement to file an immediate statutory appeal, and may not instead bring common law or constitutional challenges concerning the official action at issue. LaCroix v. Board of Education,
The plaintiff does not claim that any judicially recognized exceptions are presented in this case; rather, she asserts that the court has jurisdiction because the building official allegedly agreed not to carry out his order after issuing it.
In LaCroix v. Board of Education, supra,
The Supreme Court reiterated in Polymer Resources, Ltd. v. Keeney,
First Count
As has been described above, the plaintiff alleges in this count that the defendants violated the state building code, a claim subject to the requirements of Conn. Gen. Stat. §
Failure to file such an appeal requires dismissal of this claim. See LaCroix v. Board of Education, supra,
The second claim made in the first count of the complaint is a claim of negligence in demolishing the building after allegedly agreeing not to do so. (Amended Complaint, para. 22.) Neither the factual nor the legal validity of such a claim is at issue in the context of this motion to dismiss; rather, the issue is jurisdiction. The movants do not assert that this court lacks jurisdiction over claims of negligence or breach of contract, nor that such claims are subject to a statutory remedy. There is no basis for finding lack of jurisdiction as to these claims, which are pleaded in a sketchy and conclusory manner in paragraph 22; however, the court will not construe them to include any claim subject to the statutory appeal requirement.
Third and Fifth Counts
In these counts, the plaintiff alleges that the notice issued by the defendants and their decision to demolish her premises violated her right to due process of law and deprived her of her property without due process of law. Like the first claim in the first count, discussed above, these claims challenge the decision of the city's building official. As the Supreme Court stated in Polymer Resources, Ltd. v. Keeney, supra, andLaCroix v. Board of Education, supra, a party with a statutory right of appeal may not bypass that statutory scheme even to bring a constitutional claim. The narrow exceptions to the duty to follow the statutory appeal process that were identified in Polymer Resources, Ltd. and LaCroix are not claimed to exist in this case. There is no basis, moreover, for doubting that constitutional grounds raised in a statutory appeal would have been adjudicated by the Superior Court in the course of deciding that appeal, had it been brought. The plaintiff has failed to exhaust her statutory remedy with regard to the claims made in these two counts.
Seventh Count
The plaintiff has not briefed any objection to the movants' point that claims based on appraisals of property must be pursued by the administrative and statutory procedures identified in Conn. Gen. Stat. §
Effect of Claimed Promise of Delay CT Page 2960
The plaintiff asserts that the court has jurisdiction over her claims, even though she failed to comply with the provisions of the statutory appeal specified by Conn. Gen. Stat. §
The plaintiff claims that the doctrine of estoppel bars the defendants from raising the failure to exhaust her statutory appeal remedy as to the claims made in the first, third and fifth counts. The plaintiff does not claim that estoppel applies to the seventh count.
The plaintiff's claim of estoppel is insufficient to bar the invocation of the duty to pursue a timely statutory appeal. For the doctrine of estoppel to apply, "the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Connecticut National Bank v. Voog,
The plaintiff does not allege that her failure to file a statutory appeal from the building official's order within ten days of its issuance was induced by any representation by the defendant or its agents. The plaintiff does not, moreover, claim that the defendant ever agreed not to raise the jurisdictional issue, as was the situation in Williams v.Commission on Human Rights Opportunities,
Conclusion
The claims set forth in the first, third, fifth and seventh counts of the amended complaint that constitute statements of aggrievement from the decision and actions of a building official are subject to statutory remedies. The plaintiff failed to pursue these claims in a statutory appeal provided by Conn. Gen. Stat. §
The portion of the first count that alleges, in paragraph 22 only, negligence in "ignor[ing] their agreement to forbear the demolition" is not subject to statutory remedies. The motion to dismiss that claim for lack of subject matter jurisdiction is denied.
Beverly J. Hodgson Judge of the Superior Court
Sullivan v. State , 189 Conn. 550 ( 1983 )
Zoning Commission v. Lescynski , 188 Conn. 724 ( 1982 )
Brewster v. Brewster , 152 Conn. 228 ( 1964 )
Carpenter v. Planning & Zoning Commission , 176 Conn. 581 ( 1979 )
Bozzi v. Bozzi , 177 Conn. 232 ( 1979 )
Cahill v. Board of Education , 187 Conn. 94 ( 1982 )
Connecticut State Employees Ass'n v. Connecticut Personnel ... , 165 Conn. 448 ( 1973 )