Opinion
No. CV 06-4020494 S
January 17, 2007.
MEMORANDUM OF DECISION
In August of 2005, the New Haven Board of Aldermen approved an ordinance establishing a program of "Residential Rental Property Licensing and Inspection." Based on a premise of commitment "to protecting the safety, health and welfare of its residents and to eliminating housing blight," the ordinance established a procedure whereby virtually all owners of residential rental properties would be required to submit an application seeking licensure by the city.
Section 17-13.4 of the City's Code of ordinances states: "(a) Upon adoption of this article, it shall be unlawful for owner(s) of certain residential rental property located within New Haven to operate/rent such property without obtaining a residential rental property license. This section shall apply to the following residential rental property classifications: 1) owner-occupied dwellings containing three (3) or more rental units; and 2) non-owner occupied dwellings containing two (2) or more rental units." The ordinance requires a fee of $75 for a two-year license for each such structure with two or three residential units; $150 for those with four to ten units; $250 for those with eleven to twenty units; and $375 for those with over twenty units. Certain types of rental property are exempt from licensure. The licenses are not transferable, and any change in ownership must be reported within 30 days of the transfer of title. The new owner must then apply for a new residential rental property license and may not rent the property without obtaining such a license.
The ordinance also includes provisions for inspections of rental property and for a variety of penalties for such things as failing to obtain a license, failing to attend inspections, and failing follow-up inspections. There are procedures for appeals and also for the City to seek an "administrative warrant" from the Superior Court to compel inspections of rental units if their tenants refuse access to the inspectors. The plaintiff is a voluntary association that represents the interests of approximately fifty individuals or entities who collectively own and/or manage more than a thousand residential rental units within the City of New Haven that are subject to the ordinance. In denying the City's motion to dismiss, the court, Pittman, J., had previously found that the plaintiff has standing to represent the interests of property owners who will be affected by the ordinance in question. An association has standing to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
The plaintiff has filed this action seeking a declaration from the court that the ordinance is null and void, and also seeking injunctive relief that would prevent its enforcement against the plaintiff's membership. It focuses its attention on the following key provisions of the ordinance:
Definition of "Residential Rental Properties."
The plaintiff is concerned that biannual licensing and inspection is required of some, but not all "residential rental property." The property subject to the ordinance is defined as "a dwelling with at least two (2) dwelling units, regardless of whether anyone is currently residing in each unit." Ordinance, Sections 17-13.2 (Definitions), 17-13.4 and 17-13.5.
General Statement of Affected Properties.
The plaintiff takes issue with the fact that residential rental properties requiring licensing and inspection include owner-occupied dwellings containing three (3) or more rental units, and non-owner occupied dwellings containing two (2) or more rental units. Ordinance, Section 17-13.4.
Properties Exempt from Licensing.
The plaintiff challenges the notion that the ordinance specifically and unfairly exempts from its licensing requirements "dwellings owned by the Housing Authority of New Haven," "motels," "hotels," and "rooming houses," "condominiums," and "temporary housing," the last of which is defined in the ordinance as "a tent, trailer, or similar structure which is used as human shelter for not more than thirty (30) consecutive days, or more than ninety (90) days, in any calendar year." Ordinance, Section 17-13.2 (Definitions), and Section 17-13.3(c).
Properties Exempt from Inspection.
The plaintiff also challenges the notion that the ordinance specifically, and, in its view, unfairly and unconstitutionally, exempts from its inspection provisions "motels," "hotels," and "rooming houses," "condominiums," and "temporary housing" as well as "section 8 units whose vouchers are administered by the Housing Authority of New Haven, and are within residential rental property located in New Haven." Ordinance, Sections 7-13.2 and 17-13.3(d).
Sample Inspections.
The ordinance permits the code inspector, when the property contains "at least twenty [rental] units," to select, by "a statistically random process," "a representative sampling" of no fewer than "twenty (20%) percent" of the rental units for inspection. Ordinance, Section 17-13.7(d).
Consent or Administrative Warrants.
The ordinance requires that before conducting an inspection, the code inspector must obtain the consent of the tenant of a rented dwelling or, in the absence of such consent, obtain an administrative warrant from the appropriate official of the Superior Court for the Judicial District of New Haven. Ordinance, Section 17-13.8. The plaintiff challenges the authority of the City to obtain such a warrant.
Prohibition Against Transferability.
The ordinance prohibits the transfer of a "license" to the new owner or owners upon sale of the property. Ordinance, Section 17-13.12. The plaintiff argues that this provision renders the ordinance unenforceable because the new owner is not authorized to rent units without obtaining a license but can not even begin the application process until after he or she has already taken title.
The plaintiff's second amended complaint, the operative pleading in this case, includes sixteen counts. It alleges in general terms that "the ordinance, masquerading as `licensing' authority, seeks to establish a bi-annual `certificate of occupancy' without authority in law, with penalties and enforcement powers grossly beyond any the State has authorized and beyond what is permitted by the Constitutions of the United States and of the State of Connecticut, and with sweeping powers that effectively allow a city official unbridled and judicially unreviewable discretion to deprive the owner of the use and value of such property."
The first four counts of the second amended complaint were disposed of either at the outset of or during the trial of this case, which took place before the undersigned on October 30, November 2 and 6, and December 4, 2006. Counts One and Two claimed that the ordinance was enacted despite substantial conflicts of interest in violation of General Statutes § 7-148h(b) (Count One), and the Charter of the City of New Haven and the New Haven Ethics and Local Government Ordinance (Count Two). The plaintiff, however, had failed to respond to repeated discovery requests by the City seeking information about the nature and details of these alleged conflicts, and, at the beginning of trial, the court granted the City's motion to preclude any evidence of conflicts of interest. The court thereupon dismissed these two counts.
The attempted last minute disclosures by the plaintiff suggested that some of the Aldermen were owners of residential rental property in New Haven. Counsel conceded that an Alderman with such a conflict of interest would in any event have been more likely to vote against the ordinance, not for it.
Count Three alleged that one of the Aldermen had changed his vote from "pass" to "yes" only after the President of the Board of Aldermen had announced the result of a vote defeating passage. The plaintiff claimed that allowing the Alderman to change his vote violated City Charter Article IX, Section 39 and the Rules of the Board of Aldermen, which incorporate Robert's Rules of Order. As evidence on this point, the parties submitted a video tape of the meeting of the Board of Aldermen at which the ordinance was passed.
The court had requested additional briefs on the issue of whether, since no one at the meeting had raised a point of order, this court would have the authority to void an ordinance on the basis of such a claimed violation of parliamentary procedure. It is clear from viewing the video of the proceeding, however, that no violation of Robert's Rules of Order in fact occurred. Alderman Lee was clearly in the process of raising his hand as President Perez was asking if anyone wished to change his or her vote. Perez did not see Lee as he began to announce that the measure had failed. Once Perez recognized Lee's intention, which he did when he heard him call out "yes" in response to his question, he immediately recognized Lee, who cast the deciding vote in favor of passage.
The court therefore concluded that the plaintiff had failed to sustain its burden of proof with regard to Count Three, in that it had failed to show by a preponderance of the evidence that, as a matter of fact, there had been any violation of the Rules of Parliamentary Procedure, incorporated within the New Haven City Charter, in connection with the vote in favor of the ordinance. Based on this factual finding, it was no longer necessary to address the legal issue regarding whether a point of order not raised at a meeting of the Board Aldermen could subsequently be used in court as a basis for voiding the Board's vote.
Count Four alleged that a city official had lobbied an individual member of the Board of Aldermen in the "well" of the legislative chamber after the close of public hearings and during the actual vote, in violation of the City's Charter and the Rules of the Board of Aldermen. The plaintiff withdrew this count at the outset of the trial.
At the trial, the court heard testimony from Andrew Rizzo, City Building Official and Director of the Living Cities Initiative. Rizzo is the official with ultimate oversight over the implementation of ordinance and, indeed, was the driving force behind its presentation to the Board of Aldermen. He described the program's raison d'etre as an effort to improve the quality of life for those who rent property in the city. He testified that existing inspection programs were inadequate, for example, for such purposes as attempting to discover the existence of illegal apartments (such as two-family houses being used for three families, making impermissible apartments out of attic and basement space, and the like.) His goal was to inspect 20,000 apartments within the first two years of the program, representing a total of 54,000 total residential units. He described the program as being essentially on schedule with regard to those inspections as of the time of trial.
Joe Clerkin, the City's Budget Benefit Supervisor, testified about the financial implications of the licensing program. In particular, he demonstrated that the licensing fees and penalties, which are designed to cover the cost of operating the program, have in fact been just enough to cover operating expenses. He thoroughly debunked the plaintiff's unsubstantiated claim that the program was designed as an "end-around" to generate millions of dollars of revenue for the City.
Rafael Ramos, the Deputy Director of Housing Code Enforcement for the City, also testified. Rizzo has delegated the responsibility of managing the licensing program to him. He described the process of training inspectors for the program, acknowledging that most inspectors were not specifically certified as electricians, boiler specialists, etc, but rather that they were trained to identify possible problem areas that could be referred to more specialized, certified inspectors for further examination. He referred to the licensing program's inspectors as "the eyes and ears of the certified experts." Susan Bradford is a member of the plaintiff association, a licensed real estate broker, a manager of commercial and residential properties, and an owner of residential rental real estate. She described the various inspections to which her properties are routinely subjected, supporting the plaintiff's argument that this is a field which is already tightly regulated. In particular, however, she complained about the non-transferability of the license itself, an issue which, she contended, creates a particular problem when buildings are sold. She claimed that since the license is not transferable, and since a new owner is not entitled to rent his property without obtaining a license, and since a new owner may not even apply for a license until after the real estate closing and title has changed hands, there would be a period of limbo during which the new owner would by definition be in violation of the ordinance if he or she continued to rent to existing tenants or brought in new tenants. That provision puts owner and tenants both in jeopardy, Bradford said, and has a chilling effect on the marketability of residential rental property. She acknowledged, however, that she had sold property since the effective date of the ordinance, and although she claimed that the existence of the ordinance diminished the property's value, she was not able to demonstrate how.
The final witness at trial was Ronald Candelora, also a member of the plaintiff association and also the owner and manager of rental property in New Haven, but specializing in three-family dwellings. He affirmed that Bradford's concerns as applied to larger properties applied with equal force to the smaller properties in which he specializes. He has refinanced such property since the effective date of the ordinance, however, and he acknowledged that the licensing issue did not play any role in negotiating the terms of the refinancing agreement.
The court will first summarize the counts of the Second Amended Complaint that remained at issue after the close of evidence and then analyze each individually. Count Five alleges that as a Connecticut municipality, the City lacks the legal authority to enact the ordinance in question. Counts Six and Seven allege that the searches authorized by the Ordinance violate the protections against unreasonable searches embodied in the Fourth and Fourteenth Amendments to the Constitution of the United States (Count Six) and Article First, Section 7 of the Constitution of the State of Connecticut, (Count Seven). Counts Eight and Nine allege that the ordinance violates the procedural due process protections of the Fifth and Fourteenth amendments to the United States Constitution (Count Eight) and Article First, Section 8, of the Connecticut Constitution (Count Nine).
Counts Ten and Eleven allege that the ordinance constitutes an unconstitutional "taking" of a "property interest" of the owners of residential property without "just compensation" in violation of the Fifth Amendment to the United States Constitution (Count Ten) and Article First, Section 11 of the Connecticut Constitution (Count Eleven). Counts Twelve and Thirteen allege that the ordinance violates the substantive due process protections of the Fifth and Fourteenth amendments to the United States Constitution (Count Twelve) and Article First, Section 8 of the Connecticut Constitution (Count Thirteen). Counts Fourteen and Fifteen allege that the ordinance denies equal protection of the laws in that the City lacks a rational basis for exempting certain properties from the requirements of the ordinance, in violation of the Fourteenth Amendment to the Constitution of the United States (Count Fourteen) and Article First, Sections 1 and 20 of the Connecticut Constitution (Count Fifteen). Count Sixteen alleges that the fees, fines and charges assessed by the ordinance grossly exceed amounts that are legally authorized and/or reasonably appropriate, and that the collection of such fees and charges has been undertaken so far in advance of the inspection and licensing services rendered as to constitute illegal, unauthorized and unconstitutional taxation.
The City has raised a threshold question about whether the court should even entertain the plaintiff's claim for a declaratory judgment. The complaint itself is styled as one that seeks injunctive relief, with each paragraph alleging or incorporating by reference a claim of irreparable harm and the lack of an adequate remedy at law. It is only in the prayer for relief that the plaintiff mentions that it is also seeking a declaratory judgment. The City argues that an action for declaratory judgment is not the proper vehicle for the plaintiff's claims for declaring the ordinance null and void as it already has a claim for injunctive relief.
"The interpretation of the pleadings is always a question of law for the court." Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) (citations omitted). "However, the allegations must be accorded a "reasonable construction" that will give them effect consistent with the general theory intended by the pleader, and that will do substantial justice between the parties." Id. "The purpose of the complaint is to limit the issues to be decided at the trial of a case . . . Only those issues raised by the plaintiffs in their latest complaint can be tried . . ." Farrell v. St. Vincent's Hospital, 203 Conn. 554, 557-58, 525 A.2d 954, (1987) (citations omitted). The trial court may not render a judgment based upon a theory that is not alleged. Covey v. Comen, 46 Conn.App. 46, 50, 698 A.2d 343 (1997).
The purpose of a declaratory judgment is to "secure an adjudication of rights where there is a substantial uncertainty of legal relations between the parties." Connecticut Association of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743, 184 A.2d 42 (1986). A declaratory action may be used to determine the constitutionality of a particular statute or regulation. St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718, (1962).
Although the Second Amended Complaint is styled as a request for an injunction that would prevent the City from enforcing its ordinance, the gravamen of the claims in each of the remaining counts is that the ordinance in one way or another violates state law (Count Five) or is unconstitutional (Counts Six through Sixteen), and that it may therefore not be enforced against the plaintiff's members. In order to determine whether the plaintiff is otherwise eligible for injunctive relief, that is, to move on to consider the questions of irreparable harm and the existence of an adequate remedy at law, the court must first determine whether the plaintiff has sustained its burden of establishing a likelihood of demonstrating the ordinance's invalidity on any of the grounds alleged. In order to decide that issue, the court must, directly or indirectly, determine whether the plaintiff is entitled to a declaration that the ordinance is invalid on any of the grounds it has put forth.
The court therefore concludes that it should consider the plaintiff's claim for a declaratory judgment, as it is part and parcel of the claim for injunctive relief that would prevent the enforcement of the ordinance against its membership, the principal purpose for which it has brought this action. As will be seen, however, the court's disposition of the issues underlying the claim for a declaratory judgment is also dispositive of the entire case, rendering moot the claims of irreparable harm and the lack of an adequate remedy at law.
Count Five:
The court first considers the plaintiff's claim, in Count Five, that the ordinance conflicts with certain state statutes and therefore must be declared invalid. If the plaintiff is correct in this contention, the court need not and should not consider the plaintiff's constitutional claims. If, however, the ordinance does not violate existing state statutes, then the court must go on to consider plaintiff's arguments that the ordinance is violative of the state and/or federal constitutions.
The purpose of the licensing program, as set forth in Section 17-13.3 of the ordinance, is "to protect the safety, health and welfare of the people of the city and in order to prevent blight." As the plaintiff has pointed out, "The right to license the pursuit of a lawful business, which, as usually carried on, does not endanger the public health or safety, and thus to limit the number of those who may engage in it, is one of the highest powers of sovereignty. When conferred upon a municipal corporation, the grant cannot be extended by any doubtful implication." Smith v. State, 67 Conn. 541, 550-51, 35 A. 506, 508 (1896). The court concludes, however, that the ordinance's stated purpose represents not a "doubtful implication," but rather a valid exercise of the police power granted to municipalities by the legislature, is aimed at promoting the general health and welfare of the public, and is clearly consistent with the language of General Statutes § 7-148(c)(7)A.
The general validity of municipal housing codes was upheld in State v. Schaffel, 4 Conn. Cir.Ct. 234, 229 A.2d 552 (1966), cert. denied, 154 Conn. 752, 228 A.2d 560 (1967):
Connecticut, as well as other states, has recognized the need for municipal housing codes. Allocation of authority may be found in a number of statutes . . . Within this concept of essential requirements for health, safety and public welfare, the code provides minimum standards of required basic sanitary and heating facilities and equipment, light and ventilation, construction and repair, and safe and sanitary maintenance of the buildings. Thus, the housing code of the city of New Haven is a self-defining term; it is merely the enforcement of a municipal code which applies to housing. The program envisioned by the code, generally speaking, is designed to encourage owners as well as tenants to repair, to refurnish, and to keep the buildings from becoming dilapidated, unsafe, dangerous, unhygienic or unsanitary . . . We hold that the New Haven housing code is a lawful and proper exercise of the police power. 4 Conn. Cir.Ct. 241.
Our state statutes expressly give municipalities the authority to regulate at least some aspects of housing. General Statutes § 7-148(c) provides, in pertinent part:
Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes:
(7) Regulatory and police powers.
(A) Buildings.
(i) Make rules relating to the maintenance of safe and sanitary housing;
(ii) Regulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality.
This language certainly encompasses the expressed intent of the ordinance regarding Residential Rental Real Estate Licenses. In contrast to some other provisions of General Statutes § 7-148(c)(7), however, that portion of the statute relating to the regulation of buildings does not, in so many words, specifically confer on municipalities the power to license. In contrast, in those sections relating to parked trailers when located off the public highways, and trailer parks or mobile manufactured home parks (Subsection (A) iv); peddlers, auctioneers and junk dealers (Subsection (H) iv); amusement parks and amusement arcades (Subsection (H) vi); and sports, exhibitions, public amusements and performances, and all places where games may be played (Subsection (H) vii), the legislature has explicitly conferred the power to license on municipalities.
The plaintiff, relying on the maxim exclusio unius est exciusic alterius, contends that since licensing is specifically mentioned in certain sections, its absence from others means that authority to license has been withheld with regard to those sections where it is not mentioned. If the power to license has been explicitly conferred by the State in some fields but not with regard to housing, it argues, the defendant is without statutory authority to license residential rental realty. The City's response is to contend that it is a general principal of law that, in addition to the explicit powers to make rules and regulations granted to it by § 7-148(c), municipalities are also understood to have powers that may be necessarily implied or incident to those powers which are explicitly granted. Bridgeman v. City of Derby, 104 Conn. 1, 6, 135 A. 25 (1926). Indeed, although the courts of our state have not yet said so in so many words, at least one other state that has addressed the issue directly has concluded that "[t]he power to regulate confers the power to license." (Internal citations omitted.) See, e.g., Crackerjack Company v. City of Chicago, 330 Ill.320, 327, 161 N.E. 479 (1928).
A statute is "to be considered in the light not only of its language but of its history, the purpose it is designed to serve, and the circumstances attending its enactment." Glanz v. Board of Zoning Appeals, 123 Conn. 311, 315, 195 A. 186 (1937). While of course no state statute would authorize the City to abuse its licensing power, it is appropriate to conclude that the legislature intended for municipalities to use the tools reasonably available to it to give effect to the powers that it specifically conferred upon those municipalities. Thus, the mere fact that licensing is not explicitly mentioned within the context of § 7-148(c)'s provisions regarding buildings and housing does not compel the inevitable conclusion sought by the plaintiff that licensing is not authorized. Moreover, those contexts in which licensing is specifically mentioned within § 7-148(c) are all areas in which licensing is required by other state statutes. Their mention in § 7-148(c) thus implies only that those licenses are tied to provisions of other state statutes; it does not compel the conclusion that the absence of a reference to licensing elsewhere in the statute forbids the use of licensing, if not otherwise illegal or unconstitutional, as a vehicle for effecting any form of regulation that is authorized by this statute.
The authority granted to municipalities in this regard is not, however, unfettered.
Any rules and regulations implemented pursuant to § 7-148(c), including a licensing provision, must have a rational relationship to their objectives, Blue Sky Bar, Inc. v. Town of Stratford, 203 Conn. 14, 22-23, 523 A.2d 467 (1987); and must not conflict with the state statute. In Modern Cigarette, Inc. v. Town of Orange, 256 Conn. 105, 764 A.2d 969 (2001), the Supreme Court enunciated the standard for evaluating legislation that purports to regulate businesses and/or the use of property:
The State may regulate any business or the use of any property in the interest of the public welfare or the public convenience, provided it is done reasonably. The limit of the exercise of the police power is necessarily flexible, because it has to be considered in the light of the times and the prevailing conditions. Whether the times and conditions require legislative regulation, as well as the degree of that regulation, is exclusively a matter for the judgment of the legislative body. Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary. Every intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt. [T]he court presumes validity and sustains the legislation unless it clearly violates constitutional principles. If there is a reasonable ground for upholding it, courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. This is especially true where the apparent intent of the enactment is to serve some phase of the public welfare. (Internal citations and ellipses omitted.) Id., 118.
It is true, as the plaintiff contends, that General Statutes § 7-148 provides no explicit authority to municipalities to require licensure of their residential rental properties. It is also clear, however, that the legislature, in enacting this statute, made no effort to enumerate the precise forms that such rules and regulations might take. Rather, it is apparent that the legislature purposefully used broad and general terms in the statute to allow municipalities to address "safety, health, morals and general welfare issues" intelligently and effectively. Indeed, the very existence of General Statutes § 7-148(c) makes clear the fact that the State has not elected to preempt the field in this regard, and the use in § 7-148(c) of the word "expedient," which may be defined as "suitable for achieving a particular end in a given circumstance," further supports the position that the legislature intended to give municipalities a fair amount of freedom in carrying out the statute's mandate. As was found to be the case in Modern Cigarette, Inc. v. Town of Orange, supra, the State has specifically left open the possibility that municipalities might choose to provide different or even more stringent rules and regulations than provided by state statute, and in this case, the City seeks to provide heightened standards for the rental housing stock within its borders. As the Supreme Court noted in Modern Cigarette:
Webster's Collegiate Online Dictionary.
This broad statutory mandate authorizing regulations at both the state and local levels, in conjunction with specific legislative findings and declarations of policy, serves as the setting in which we evaluate the claims of the parties. In doing so, we are mindful that the statutory scheme of this legislation envisages its adaptation to infinitely variable conditions for the effectuation of the purposes of these statutes. (Internal quotation marks omitted.) Id., 122.
In short, "the legislature intended to preserve municipal authority to enact health, safety and welfare ordinances that preserve and promote the well-being of the municipality's inhabitants . . ." Id., 126.
The United States Supreme Court has also considered the power of municipalities to regulate rental property:
An attempt to define [the reach of police power] or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of govermnent, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.
Public safety, public health, morality, peace and quiet, law and order-these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it . . . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct 98, 99 L.Ed. 27 (1954). Unless the plaintiff can establish that it is not these well recognized and accepted goals, but rather some other impermissible motivation, that underlies this ordinance, the court must conclude that the City is acting within the authority granted to it by the legislature in seeking to promote the welfare of those of its citizens who depend on rental housing for their dwelling places. "The nature of ordinances and regulations that may be adopted and enforced is largely discretionary with municipal authorities. Under charter powers, such rights are uniformly liberally construed by courts, and unless clearly unreasonable and arbitrary, or demonstrably violative of constitutional rights, will be sustained." Eastern Oil Refining Co., Inc. v. Court of Burgesses of Wallingford, 11 Conn.Sup. 285, 292 (1942). See, also, Greenacres Apartments, Inc. v. Bristol Township, 85 Pa.Cmwlth. 572, 575, 482 A.2d 1356, 1359 (1984).
The primary rule for interpreting and construing enactments is that the expressed intention of the legislative body is to be ascertained and given effect. Hutchison v. Board of Zoning Appeals of Town of Stratford, 140 Conn. 381, 384, 100 A.2d 839 (1953). An ordinance is a municipal legislative enactment, and the same rules of construction apply to ordinances as to statutes. One of these rules is that, if reasonably possible, a legislative enactment should be so construed that no clause, sentence or word is superfluous, void or insignificant. (Citations omitted). Great Atlantic Pacific Tea Co. v. Scheuy, 148 Conn. 721, 723 (1961).
Although the plaintiff, in its earlier memoranda and, to some extent, during the trial, appeared to be accusing the City of having some ulterior motive for enacting the ordinance, it presented no evidence tending to indicate any bad faith on the part of the City. Absent bad faith, the ordinance must be presumed to be a valid exercise of its police power. "If any reasonable ground to uphold the ordinance exists, especially where, as here, the apparent aim of the ordinance is to serve the general welfare, courts will assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose." State v. Schaffel, 4 Conn. Cir. 241. The court therefore concludes that the City of New Haven is well within its authority to use the implied power to license as a part of its effort to regulate its residential rental housing stock.
The plaintiff also contends, however, that the ordinance conflicts with General Statutes § 47a-57, which establishes the requirement of a "certificate of occupancy" before a premises may be occupied. That statute provides, in pertinent part,
(a) An apartment or dwelling unit in any structure containing three or more housing units in any municipality which adopts the provisions of this section by vote of its legislative body shall not be occupied for human habitation, after a vacancy, until a certificate of occupancy has been issued by the person designated by the legislative body of such municipality to administer the provisions of this section, certifying that such apartment or dwelling unit conforms to the requirements of the applicable housing ordinances of such municipality and this chapter. No provision of this section shall apply to any structure occupied by the owner thereof and containing three or less housing units. No provision of this section shall be construed to prohibit human occupancy of such apartment or dwelling unit during the pendency of an application for such certificate.
(d) The provisions of this section shall not apply to any structure which has been constructed or substantially reconstructed within the ten-year period immediately before the date such certificate of occupancy would otherwise be required under this section.
That plaintiff's argument in this regard is flawed on at least two fronts. First, the statute, by its own terms, is only binding on a municipality that "adopts the provisions of the section by vote of its legislative body." Whether or not a municipality opts to incorporate the provisions of Section 47a-57 by an ordinance is discretionary. The City has represented that its legislative body has not adopted the provisions of General Statutes § 47a-57, and the plaintiff has not contradicted that representation.
Even if bound by General Statutes § 47a-57, however, this would not necessarily prevent the City from applying heightened standards of regulation in an area in which the General Assembly has already established minimum standards. "In determining whether a local ordinance is preempted by a state statute, [the court] must consider whether the legislature has demonstrated the intent to occupy the entire field of regulation on the matter or whether the local ordinance irreconcilably conflicts with the statute." Modern Cigarette, Inc. v. Town of Orange, 256 Conn. 119.
Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives . . . (citations omitted) (internal quotation marks omitted). Therefore, "[t]hat a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through the enactment of an ordinance, so long as there is no conflict with the state legislation. (Citations omitted.) Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner. (Citations omitted). Id., 120.
"Therefore, merely because a local ordinance, enacted pursuant to the municipality's police power, provides higher standards than a statute on the same subject does not render it necessarily inconsistent with the state law. Whether a conflict exists depends on whether the ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes." Id. "Where a municipal ordinance merely enlarges on the provisions of a statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases." Aaron v. Conservation Commission, 183 Conn. 532, 544, 441 A.2d 30 (1981).
In Modern Cigarette, the Supreme Court held that even though there was a state statute regarding the sale of cigarettes from vending machines, the defendant municipality retained the power not only to regulate cigarette vending machines more stringently but even to ban them altogether, based upon of the general police powers granted to the municipality by General Statutes § 7-148(c). "It simply cannot be said that [an] ordinance, as a valid exercise of the [t]own's police power, irreconcilably conflicts with a statute that ensures that a municipality retains its power to enact provisions ensuing the health, safety and welfare of its inhabitants." Id., 125.
A comparable Stamford ordinance, which required a "Certificate of Apartment Occupancy . . . after a vacancy" and was enacted pursuant to an earlier version of General Statutes § 47a-57, was upheld against a constitutional challenge in Hill Construction Company et al. v. State of Connecticut et al., 366 F.Sup. 737 (D.Conn. 1973). The District Court appeared to assume, without actually deciding, that the State had granted the municipality authority to enact the ordinance in question. The New Jersey Supreme Court has upheld a similar local ordinance in Dome Realty, Inc. et al. v. City of Paterson, 83 N.J. 212, 218-20, 416 A.2d 334 (1980).
In the instant case, the City's ordinance calls for inspection and licensing of residential rental property on a larger scale than that required under General Statutes § 47a-57. The ordinance does not license what the state statute forbids, however, nor does it prohibit what the state statute allows. Rather than conflict with state statutes, the ordinance complements them. The court therefore concludes that the ordinance does not violate any state statutes, and the plaintiff is entitled neither to declaratory nor injunctive relief based on the grounds raised in Count Five.
Counts Six and Seven:
The remainder of the Second Amended Complaint raises challenges based on both the Federal and State Constitutions. In these two counts, as well as all of the remaining counts, the plaintiff seeks to have the court declare the ordinance unconstitutional and to enjoin its enforcement against its membership. When the issue of constitutionality is raised, the court presumes validity and sustains the legislation unless it clearly violates constitutional principles. State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956).
It is a universally accepted rule of constitutional law that the legislative department in the use of its police power is the judge, within reasonable limits, of what the public welfare requires. The court's function in examining the constitutional aspect of police legislation is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection. Courts can not question the wisdom of police legislation and must accord to the legislature a liberal discretion, especially in matters involving potentialities generally recognized as dangerous. (Citations omitted.)
Pierce v. Albanese, 144 Conn. 241, 249 129 A.2d 606 (1957). "Constitutional justification must be found in the nature of the problem confronting the legislature, the purpose to be accomplished, and the means adopted to accomplish it." (Citations omitted.) Id., 251.
For a successful challenge to the constitutionality of this ordinance, the plaintiff must show that its interests are adversely affected under the facts of the case and not under some other circumstances. State v. Hurliman, 143 Conn. 502, 506, 123 A.2d 767 (1956). The validity of the legislation must be tested upon its effect on the plaintiff. Pierce v. Albanese, 144 Conn. 251. In this case, of course, that means that validity is tested based upon its effect on the plaintiff's membership.
The plaintiff claims that the provisions of the ordinance which allow the City to authorize inspections, which the plaintiff characterizes as "searches without probable cause" and to seek an administrative warrant from the Superior Court when a tenant refuses to consent to such a "search," violate the protections against unreasonable searches guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution (Count Six) and Article 1, Section 7 of the Connecticut Constitution (Count Seven). The City agrees, at least for purposes of argument, that the inspections are searches controlled by the United States and Connecticut Constitutions, but it contends as a threshold matter that the court lacks jurisdiction to address the validity of this particular provision because this plaintiff, as an association of landlords, lacks standing to challenge this provision. It contends that because the landlords themselves, and, by extension, the plaintiff association, do not have a legitimate privacy interest that would provide a basis for standing to contest such searches, See, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), they also lack standing to challenge this portion of the ordinance.
In light of the procedure for inspections outlined in the ordinance and the constitutional requirement that a warrant specify the property to be searched, it is apparent that it is the tenant, not the landlord, whose property interests are at stake should such an inspection/search be undertaken and/or an administrative warrant to conduct the search be sought. Indeed, the general rule of law is that a landlord may not consent to a search of the tenant's premises, and this is true even where the landlord has some right to enter for purposes of inspecting and cleaning. State v. Zindros, 189 Conn. 228, 243, 456 A.2d 288 (1983) citing Chapman v. United States, 365 U.S. 610, 616-17, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1961).
The plaintiff argues that because court has already found that it has standing to challenge the ordinance, which the court, Pittman, J., did find when it denied the defendant's motion to dismiss, the plaintiff's standing to contest this portion of the ordinance is already the law of the case. This view misreads the limited nature of Judge Pittman's holding, which was only a conclusion that the plaintiff association was an organization whose membership represented the views of a broad range of those who were subject to the ordinance's licensing procedures, namely owners of various sized residential rental properties in New Haven. That decision in no way purported to consider the question of whether the plaintiff, as a representative of the landlords, had standing to challenge the constitutionality of provisions that would authorize inspections of tenants' apartments and purport to confer upon the Superior Court the authority to issue "administrative warrants" to the City to conduct such inspections.
"[T]he plaintiff ultimately bears the burden of establishing standing." Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742 (2005) "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Citations omitted; internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "The issue of standing implicates this court's subject matter jurisdiction." Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 368, 880 A.2d 138 (2005). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 390, 880 A.2d 865 (2005).
The fact that the landlords represented by the plaintiff association are required under the ordinance to be present at the time of the inspection does not affect the issue of standing. Their mere presence does not make the tenant's privacy interest their own. The plaintiff cites City of Seattle v. McCready et al, 123 Wash.2d 260, 868 P.2d 134 (1994), for the proposition that in absence of express constitutional or statutory law, municipalities may not seek administrative warrants for routine inspections, and it concludes that this decision means that the City of New Haven is also precluded from seeking such warrants. In that case, however, it was tenants, not landlords, who mounted the challenge to constitutionality, so the question of standing raised by the City here was not an issue in that case.
Although the court shares at least some of the plaintiff's concerns, at least with regard to the City's power to confer jurisdiction on the Superior Court to issue "administrative warrants," it agrees with the defendant that the plaintiff lacks standing to challenge the constitutionality of the inspections and the administrative warrant procedure. Should the City eventually seek such a warrant, the stage will be appropriately set for a party with standing to mount the appropriate challenge. The court notes, however, that even if, for example, the warrant procedure should be struck down, the Charter of the City of New Haven includes a "severability" provision that permits the balance of the ordinance to be enforced even if some provisions are struck down. For purposes of this case, however, the issue is not properly before the court, which therefore dismisses Counts Six and Seven for lack of subject matter jurisdiction.
Section 1-6 of the New Haven Code of Ordinances provides: "If any phrase, clause, sentence, paragraph, or section of this Code shall be declared unconstitutional, invalid or unenforceable by the valid judgment or decree of any court, such unconstitutionality shall not affect any of the remaining provisions of this Code."
Counts Eight and Nine:
The plaintiff next argues that Ordinance violates the guarantee of procedural due process contained in the Fourteenth Amendment, Section One, of the Constitution of the United States:
. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . .;
and Article First, Section 8 of the Connecticut Constitution:
. . . No person shall . . . be deprived of life, liberty or property without due process of law . . .
The due process protections of Article I, Section 8 of the Connecticut Constitution have been interpreted as essentially similar to due process protections of the Fourteenth Amendment to the U.S. Constitution, and incorporate the concept of a "property interest."
The concept of "procedural due process" has been interpreted as requiring reasonable notice of legal grounds for deprivation of a person's property interest and an opportunity to be heard prior to being deprived of that property interest. Loudermill v. Cleveland Board of Education, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). "The Fourteenth Amendment's procedural protection of property is a safeguard of the security interests that a person has already acquired in specific benefits. These interests — "property interests — may take many forms." CT Page 1045 Board of Regents v. Roth, 408 U.S. 564, 576, 408 S.Ct. 564, (1972). Whether such a "property interest" exists is a matter of State law. Bishop v. Wood, 426 U.S. 341, 344-45 96 S.Ct. 2074 (1976). Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694 (1972).
Whether a plaintiff has stated a due process claim for an improper deprivation of a liberty or property interest requires a two-step analysis. Narumanchi v. Board of Trustees of Connecticut State University, 850 F.2d 70, 72 (2d Cir. 1988) (citing Board of Regents v. Roth, 408 U.S. 564 (1972)). The threshold issue is whether the complaint alleges a property or liberty interest that is actually protected by the Constitution. White Plains Towing Co. v. Patterson, 991 F.2d 1049, 1052 (2d Cir. 1993) (citing Matthews v. Elderidge, 424 U.S. 319, 96 S.Ct. 893 (1976)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim entitlement to it." Board of Regents v. Roth, 408 U.S. 577. "If a protected interest is identified, a court must then consider whether the government deprived the plaintiff of that interest without due process. The second step of the analysis thus asks what process is due to the plaintiff, and inquires whether that constitutional minimum was provided in the case under review." Nanimanchi, supra, 72 (citing Matthews v. Elderidge, supra).
The Supreme Court has described "the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Cleveland Board of Education v. Loudermill, 470 U.S. 542. The Due Process Clause, however, does not require specific procedures every time private interests are alleged to be in jeopardy. "`Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts . . . [It] does not require a trial-type hearing in every conceivable case of government impairment of private interest . . . The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Hill Construction Company v. State of Connecticut, 366 F.Sup. 742 (Citations omitted).
The plaintiff argues that residential rental property owners in New Haven "manifestly have a `property interest' in the certificates of occupancy and other permits they have been issued." It claims that the landowners are entitled to due process of law before they are deprived of the full benefits of the certificates of occupancy and other permits. To support this claim, it cites Zabra v. Town of Southold et al., 48 F.3d 674, 681 (2d Cir. 1995), which, it claims, recognizes that there is such a property interest in such permits.
A closer look at the case, however, casts considerable doubt on this reading:
The issue presented — whether Zahra had a constitutionally protectible "property interest" in the insulation inspection — is novel. In essence, Zahra is attempting to define a derivative property interest based upon an existing property interest. His position is that since he had a "property interest" in the building permit (a question that we do not pass upon herein), he necessarily had a "property interest" in the insulation inspection, since he could not conduct the activities permitted by the building permit in the absence of the inspection. Alternatively, he is requesting that this Circuit recognize that a "property interest" in the insulation inspection was created because Lessard was charged with the duty of enforcing the Town Code, and, thus, had no discretion regarding whether to perform the inspection. We are unpersuaded by both courses of reasoning, and hold that the district court did not err in declining to instruct the jury concerning a substantive due process violation based on defendant's refusal to perform the insulation inspection, as there was no constitutionally protectible "property interest" in such an inspection.
While we acknowledge that, in certain circumstances, a party may have a constitutionally protectible "property interest" in a benefit that affects land use i.e. a building permit, certificate of occupancy, zoning variance, excavation permit or business license . . . we do not recognize, at least on the facts of this case, the existence of such a "property interest" in the procedures giving rise to such an interest. Zahra, in attempting to define a derivative property interest in an insulation inspection from an existing property interest in a building permit, misinterprets the role of building inspections under the Town Code. (Citations and footnote omitted.)
In short, Zahra hardly "recognized" the property interest that the plaintiff claims here. Rather, while expressing doubts about the concept, the court declined to find one in the case before it. Furthermore the plaintiff's additional contention, that the very license under discussion, once issued, also constitutes a valuable "property interest," does nothing to advance its due process claim as that claim was also addressed and rejected in the very case cited by the plaintiff.
Thus, contrary to the plaintiff's assertion, the requirement that the owners "undergo inspections and obtain `licenses' before they can lease, provide for occupancy and collect rents on units for which they have already obtained certificates of occupancy and other permits" is not a denial of procedural due process. Moreover, beyond the question of whether the plaintiff's membership's possession of certificates of occupancy and other permits themselves reflect a property interest, the fact remains that with regard to the application of this ordinance, procedural due process exists in the appeals provisions contained within Section 17-13.16 of the ordinance, and the plaintiff has offered no evidence to suggest that this process is not adequate to protect any property interest its members might have.
The court therefore finds that as to Counts Eight and Nine, the plaintiff has failed to prove that the ordinance violates the procedural due process protection of either the State or Federal Constitutions, and it is not entitled to a judgment declaring the ordinance null and void on that basis. Because it therefore can not show that it is likely to prevail in establishing its burden of showing that the ordinance violates the plaintiff's membership's rights to procedural due process under either the State or Federal Constitutions, it is also not entitled to injunctive relief on these counts.
Counts Ten and Eleven:
In Counts Ten and Eleven, the plaintiff claims that it has a valuable property interest in certificates of occupancy and other permits, and that this ordinance and its accompanying regulations therefore constitute a "taking" of a significant property interest without just compensation in violation of the Fifth Amendment to the United States Constitution and Article First, Section 11 of the Connecticut Constitution. "Both federal and state constitutions have similar provisions requiring just compensation where a taking occurs." Massimo v. Planning Commission of the Town of Naugatuck, CT Page 1048 41 Conn.Sup. 196, 205 (1989).
There has been no unconstitutional "taking," however, "unless the property can not be utilized for any reasonable and proper purpose, as where economic utilization of the land is, for all practical purposes, destroyed." Horak v. State, 171 Conn. 257, 261, 365 A.2d 155 (1976). "The mere decrease in value of property" does not automatically justify the conclusion that there has been an unconstitutional taking. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 695, 433 A.2d 999 (1980).
Assuming that the plaintiff's membership has a property interest in its certificates of occupancy as well as its other licenses and permits, the plaintiff has nonetheless failed to establish anything remotely resembling the destruction of that interest. To constitute an unconstitutional taking, the regulation must interfere with the owner's reasonable investment back expectations. Bauer v. Waste Management, 234 Conn. 221, 257 662 A.2d 1197 (1995). The plaintiff offered little but speculation on this point. Indeed, and to the contrary, it presented testimony to the effect that at least one member had sold property subject to the ordinance with no demonstrated diminution of value, and that another had successfully refinanced one of his properties. The plaintiff has therefore not met its burden of establishing that the effect of the ordinance has been to accomplish an unconstitutional "taking."
The plaintiff has basically argued that the requirements of bi-annual inspection and licensure and the prohibition against transfer of the license are "interferences with and denial of the income and other benefits to which such property owners are entitled due to the certificates of occupancy and other licenses and permits which they have received." Without evidence, the plaintiff has leapt from this assertion to the conclusion that the ordinance violates the constitutional prohibition against a "taking" without "just compensation." Neither the assertion nor the leap find any support in the law or in the evidence presented at trial. The plaintiff is therefore not entitled to a judgment declaring the ordinance void as alleged in these counts, and because this conclusion of necessity means that the plaintiff is unlikely to prevail on the merits of its claim, it is also not entitled to the injunctive relief it seeks in Counts Ten and Eleven.
Counts Twelve and Thirteen:
The plaintiff has styled these two counts as claims of denial of the "substantive due process protections, respectively, of (A) the CT Page 1049 Fifth Amendment and the Fourteenth Amendment, Section One of the Constitution of the United States, as enforced pursuant to 42 U.S.C. Sections 1983 and 1988, and (B) Article First, Section 8 of the Connecticut Constitution." The second amended complaint alleges that the ordinance denies owners of residential rental properties in New Haven their "property interest" as well as a "liberty interest" in their ability to pursue their chosen professions and means of making a living. The claim is that the "the powers purportedly conferred by the Ordinance interfere with and deny the income and other benefits to which such property owners are entitled as a result of their chosen professions and means of making a living."
In its memoranda of law, the plaintiff has abandoned any claim based on a denial of a "liberty interest."
Substantive due process protects only those interests that are "implicit in the ordered concepts of liberty." Local 342 et al. v. Town Board of the Town of Huntington et al., 31 F.3d 1191, 1196 (2d Cir. 1994); Palko v. Connecticut, 302 US 319, 58 S.Ct 149, 82 L.Ed. 288 (1937). Such an interest must be "constitutionally fundamental" in order to implicate substantive due process. Nicholas v. Pennsylvania State University et al., 227 F.3d 133, 141 (3d Cir. 2000). Before a plaintiff attempts to prove a deprivation of a property right in violation of substantive due process as guaranteed by the United States Constitution, the plaintiff must first establish that it has a federally protectable right. Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
The plaintiff argues repeatedly that a certificate of occupancy grants property owners a "`clear entitlement' to the rental and occupation of their properties without further inspection or license." It provides absolutely no authority, however, for the proposition that the "clear entitlement" of which it speaks is of either federal or state constitutional magnitude. It is also difficult to discern from the plaintiff's arguments and memoranda precisely how this claim is to be differentiated from the procedural due process arguments that form the basis of Counts Eight and Nine, the "unconstitutional takings" argument advanced in Counts Ten and Eleven, and the unconstitutional tax arguments in Count Sixteen.
The plaintiff has given the court no authority on which it could base a conclusion that the possession of a certificate of occupancy is sufficient, as a matter of constitutional law, to insulate property owners from further inspections of their property. (See the discussion of Counts Eight and Nine, infra.) The due process clause is a limitation on government action, designed to prevent it "from abusing [its] power, or employing it as an instrument of oppression . . ." (Internal quotation marks omitted.) DeShaney v. Winnebago County, 489 U.S. 198, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Governmental conduct does not violate substantive due process unless it "shocks the conscience;" County of Sacramento v. Lewis, 523 U.S. 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1997); and egregiously transcends the "decencies of civilized conduct." Rochin v. California, 342 U.S. 173, 72 S.Ct. 205, 96 L.Ed. 183 (1952); ATC Partnership v. Town of Windham, 251 Conn. 597, 741 A.2d 305 (1999). The parts of the ordinance which plaintiff finds objectionable are those which permit regular, but infrequent (one every two years), inspections, set modest licensing fees, and limit the transferability of licenses, all for the purpose of attempting to ensure the health and safety of tenants residing in New Haven. If regulations that promote the public welfare are reasonable, even though they deprive the owner of some degree of use of his property, they are not violative of substantive due process. See, Farmington River Co. v. Town Plan and Zoning Commission of Town of Farmington, 25 Conn.Sup. 125 (1963). The plaintiff has not shown that the regulations of which it complains are unreasonable, and it certainly has not proved that they shock the conscience or transcend the boundaries of civilized conduct.
As to the claim in Count Twelve that, independent of the Fourteenth Amendment argument, the ordinance also violates the State Constitution, this court declines to consider it. "We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [plaintiff] has provided an independent analysis under the particular provisions of the state constitution at issue." Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006). (Internal citations omitted.) The plaintiff has not done so here.
In short, these two counts do not provide a legal basis for declaring the ordinance void, and, as the court can not conclude that the plaintiff is likely to prevail on the merits of its arguments, the plaintiff is not entitled to the issuance of a temporary injunction based on the legal theories advanced in these counts.
Counts Fourteen and Fifteen:
The plaintiff alleges that the ordinance denies equal protection of the laws in that the City lacks a rational basis for the provisions of sections 17-13.4 and 17-13.5, which exempt certain properties from the requirements of the ordinance, in violation of the Fourteenth Amendment to the Constitution of the United States (Count Fourteen) and Article First, Sections 1 and 20 of the Connecticut Constitution (Count Fifteen). The plaintiff specifically argues that the inspection and licensing exemption provisions create classifications, namely exempt and nonexempt properties, in an arbitrary and capricious manner. As will be set forth in greater detail below, the court concludes that the classifications created by the inspection and licensing exemption provisions are not arbitrary or capricious, have a rational basis and, therefore, do not violate the plaintiff's equal protection rights.
The classifications created by the inspection and licensing exemption provisions do not target a suspect class, group or fundamental interest and are therefore subject to rational basis review. See Hill Construction Co. v. State of Connecticut, 366 F.Sup. 737, 739 (D.Conn. 1973). In reviewing sections 17-13.4 and 17-13.5 of the city's ordinance, the Court must determine whether the ordinance "rationally furthers some legitimate, articulated [municipal] purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment." Id., citing San Antonio Independent School District v. Rodrigues, 411 U.S. 1, 93 S.Ct 1278, 36 L.Ed.2d 16, 33 (1973). "The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced are treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560 (1920).
"Connecticut courts have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation, with some exceptions, will survive an equal protection challenge if it satisfies a rational basis test . . . If the statute does not involve fundamental rights or suspect classifications, the legislation is constitutional if any difference in treatment is rationally related to a legitimate government interest." Neuhaus et al. v. DeCholnoky et al., 83 Conn.App. 576, 590, 850 A.2d 1106 (2004); reversed, in part, on other grounds, 280 Conn. 190, 905 A.2d 1135 (2006), citing Giordano v. Giordano, 39 Conn.App. 183, 189, 664 A.2d 1136 (1995). "In order for a[n ordinance] to withstand rational basis review, we consider whether the classification and disparate treatment inherent in a statute bear a rational relationship to a legitimate [municipal] end and are based on reasons related to the accomplishment of that goal . . . [U]nder this analysis, the legislature is not required to articulate the purpose or rationale for its classification. The test . . . is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis." (Citations omitted; internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 346, 819 A.2d 803 (2003).
The District Court in Hill Construction Co., supra, upheld the constitutionality of a city ordinance, which pertained to buildings that had four or more dwelling units, that were more than fifteen years old, and that were not owned by a housing authority. The District Court stated that the purpose of the "ordinance . . . is the enforcement of the "minimum standards of maintenance and repair for rental housing," and concluded that, "since older buildings utilized as income-producing investments by private owners are more likely to be in need of repairs and alterations for the protection of health and safety of their tenants than are like properties of more recent construction, the ordinance is rational and not arbitrary and capricious." Id., 740.
In the present case, the ordinance was enacted because the City of New Haven is "committed to protecting the safety, health and welfare of its residents and to eliminating housing blight. Towards that end, the city's Board of Aldermen has adopted ordinances and regulations concerning the operation and condition of certain residential rental property within its borders." (City Code of Ordinances, substitution amendment 8-1-2005.) The defendant's ordinance created exemptions, just as the city of Stamford did in Hill, in order to allocate funds efficiently. The plaintiff's assertion that the exemptions are "confusing" and "not rational" is not supported by any evidence and is an insufficient basis for any conclusion that the City acted in an arbitrary and capricious manner. "There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes." Hill, supra, citing San Antonio Independent School District v. Rodriguez et al., 411 U.S. 1. 93 S.Ct. 1278. "If the classification has some reasonable basis, it cannot be held offensive to the Equal Protection Clause `because it is not made with mathematical nicety or because in practice it results in some inequality." Hill, supra, 740. (Internal quotations omitted.)
The court can readily conceive of several "rational" reasons, many of which were highlighted by the trial testimony of Rizzo and Ramos, explaining why the city chose to exempt certain properties from licensure and inspection. The city's goal is to inspect rental properties within their borders with their own qualified code inspectors in order to assure that its citizens live in healthy, safe conditions. Inspection of rental properties also serves as a way for the city to investigate buildings for illegal units which may not be up to code and/or properly taxed. The city excluded temporary housing such as hotels, motels, rooming houses, and dormitories because even if there are violations on such properties, residents are not subjected to them on a long-term basis. If such patrons do not like their temporary living situation, they can usually move out. In addition, most temporary dwellings are already subject to their own programs of inspections, as is "Section 8" housing, which is excluded because it is already the object of what the City considered to be satisfactory state or locally controlled inspections.
More vigorous inspection of non-owner occupied premises is explained by the logical inference that resident owners are, all other things being equal, more likely to maintain their premises at a higher standard than are absentee owners. The concept of random inspections of a limited number of apartments in larger buildings finds a rational basis in the "law of averages" and the need to use the available resources wisely and prudently.
The court concludes that the inspection and licensing requirements of sections 17-13.4 and 17-13.5 tend in general to further the city's objective of "protecting the safety, health and welfare of its residents and to eliminat[e] housing blight." This court finds that the classifications created by the inspection and licensing exemption provisions of sections 17-13.4 and 17-13.5 also further the City's objective because they allow the City to allocate its limited resources to residential rental property most likely to be susceptible to health, safety and building violations and hence, most likely to affect its residents. Limiting the number of units inspected in large properties permits the city to keep costs, and hence licensing fees, manageable. Subjecting to inspection only the properties that have a higher probability of being found to violate a health or safety code is a "reasonable means of utilizing limited enforcement resources," Hill, supra, 741, and rationally furthers the city's purpose of assuring its rental unit residents that that they will live in conditions that have been approved by the city. Therefore, because the exemptions created by the ordinance are a rational means to the city's goal of inspecting properties that have a greater probability of violating health and safety standards, sections 17-13.4 and 17-13.5 do not violate the equal protection clauses of either the state or federal constitutions. The plaintiff is thus not entitled to a judgment declaring the ordinance void on this basis, and, as the court concludes that the plaintiff is not likely to prevail on the merits, it is also not entitled to injunctive relief on these two counts.
Count Sixteen:
In Count Sixteen, the plaintiff complains that the fees, fines and charges contemplated by the ordinance constitute an unconstitutional tax. It reaches this conclusion in large part on the basis of clearly erroneous calculations of the amount of revenue it expects the ordinance to generate. While asserting that revenue from the ordinance "grossly exceeds amounts legally authorized constituting an unconstitutional tax," it provides no authority or standard for assessing that contention, nor does it produce any evidence to support the factual basis for its claim.
If the city is acting in accordance with its powers under Connecticut General Statutes § 7-148, as the court has already found, it is entitled to charge a licensing fee. Municipalities have the power to make rules relating to the maintenance of safe and sanitary housing as well as powers that may be necessarily implied or incident to the powers granted. Bridgeman v. City of Derby, 104 Conn. 6.
It is well established that the administrative costs of licensure may be recovered by Connecticut municipalities through a licensing fee. Welch v. Hotchkiss, 39 Conn. 140 (1872). Administrative costs include the "necessary expense attending the issuing and recording the license." Id., 142. A licensing fee may not exceed the costs the city incurs in issuing the licensing. City of New Haven v. New Haven Water Co., 44 Conn. 105, 108 (1876). A revenue-generating fee that exceeds the cost of issuing a license operates as a tax and is therefore impermissible. Id. It is "equitable and just that expenses of this character should be paid by those for whom, and at whose instance, they were incurred." Welch, supra, 143. "This whole expense is incurred more particularly for this class of persons, and is necessary in order that they may enjoy the use of their own property, but in such a manner as not to expose [others] to unnecessary annoyance and risk." Id., 144.
Although Connecticut courts have not directly addressed the use of licensing fees for rental unit inspections, guidance may be found in decisions from other jurisdictions. A Pennsylvania Court has approved a municipality's imposition of a licensing fee to offset the costs of performing housing unit inspections as a valid exercise of the police power. "A licensing fee, of course, is a charge which is imposed pursuant to a sovereign's police power for the privilege of performing certain acts, and which is intended to defray the expense of regulation." Greenacres Apartments, Inc. v. Bristol Township, 85 Pa.Cmwlth. 572, 575, 482 A.2d 1356 (1984). The stated purpose of the statute there was to protect the public health, safety and welfare of inhabitants; and the court found that "[t]he need to ensure compliance with the minimum standards is obviously greater in the rental of homes or apartments . . ." Id. at 575. In Meitner v. Township of Cheltenham, 75 Pa.Cmwlth. 46, 51, 460 A.2d 1235 (1983), another Pennsylvania case, the court elaborated on the difference between this type of licensing fee and an impermissible tax:
A charge which is imposed by the sovereign, in the exercise of its police power, upon a person within its jurisdiction for the privilege of performing certain acts and which has for its purpose the defraying of the expense of the regulation of such acts for the benefit of the general public; it is not the equivalent of or in lieu of an excise or property tax, which is levied by virtue of the government's taxing power solely for the purpose of raising revenue.
In Oak Park Trust and Savings Bank v. Village of Mount Prospect, 181 Ill.App.3d 10, 15, 536 N.E.2d 763 (1989), an Illinois case, the court similarly concluded that ". . . the power to regulate includes the power to charge a license fee in order to defray all or part of the costs incurred as a result of regulation and inspection."
Although it provides no evidentiary support whatsoever for this claim, the plaintiff's principal contention is that the new ordinance is "a mechanism to increase City revenues in a manner that would be relatively more politically palatable by increasing the burden on residential rental property owners (i.e., `landlords') who constitute far fewer New Haven voters and sometimes do not live or vote in New Haven, rather than on the more numerous residential tenants who all live and potentially vote in New Haven." Such polemics are no substitute for evidence, and the plaintiff made no effort to introduce any evidence that might provide a factual basis for its assertions. In the absence of evidence, the court finds the assertions not to have been proved.
In its Reply Memorandum, the plaintiff had offered the following analysis of the ordinance's financial impact, based on its altogether mistaken reading of the City's General Fund Revenue Budget for Fiscal Year 2006-2007: "[In] the portion devoted to `Licenses/Permits/Services Fees,' the line item for `Building Inspections' reveals the following: the Audited revenues for Fiscal Year 2004-2005 (July 1 through June 30) were $4,443,382.00; the projected revenues for the Amended Fiscal Year 2005-2006 were $4,500,000.00; but the Aldermen's Approved revenues for Fiscal Year 2006-2007 are $8,200,000.00, a projected increase of more than 82 percent. Assuming that each and every additional dollar for added inspection personnel is to be devoted to the increase in inspections occasioned by the new Ordinance, for the added investment of $34,930 the City concludes it will reap increased revenues by $3,700,000, a net gain of revenues of $3,665,070."
Unfortunately, this claim was typical of what the plaintiff offered by way of "information and belief" in its pleadings but which turned out to be absolutely unsubstantiated by any evidence at trial. Testimony at the trial revealed that the City anticipated that revenue would approximately equal the cost of administrating the licensure program. Indeed, the first year's experience suggests that the City's projections are largely on target. The plaintiff did nothing to undermine the City's projections, offered by Andrew Rizzo, the City's Building Official and Director of the Living Cities Initiative, and Rafael Ramos, Deputy Director of Housing Code Enforcement and the person in charge of the Residential Rental Licensing Program. The plaintiff made no effort to provide the court with any evidence that might tend to substantiate its outlandish allegations of a $3,665,070 windfall, or, for that matter, any windfall at all. Nor did it offer any evidence tending to prove its other allegation in Count Sixteen, namely that "the collection of such fees and charges have been undertaken so far in advance of the inspection and licensing services rendered as to constitute illegal, unauthorized and unconstitutional taxation."
As an additional response to the plaintiff's claims that the licensure fees are exorbitant, the City has pointed out that, calculated on a monthly basis, they would amount to a rate of $1.56 per month per unit for a two-unit structure; $1.04 per month per unit for a three-unit structure; $1.56 per month per unit for a four-unit structure; $ .63 per month per unit for a ten-unit structure; $ .95 per month per unit for an eleven-unit structure; $ .52 per month per unit for a twenty-unit structure; and $ .74 per month per unit for a twenty-one or more-unit structure. The plaintiff offered no evidence tending to suggest that whether or not these charges were passed on in full or in part to the tenant in the form of an increase in monthly rent, the fees would in any way hamper the property owners' ability to lease their rental units.
An ordinance "is a police and not a tax measure. The test, then, is whether the amount of the fee is reasonably proportionate to the cost of administering and enforcing the ordinance." Karen v. Town of East Haddam, 146 Conn. 720, 728-29, 155 A.2d 921 (1959), citing City of New London v. Howe, 94 Conn. 269, 273, 108 A. 529 (1920). Based on the evidence presented at trial, the court finds that the licensing fees are reasonably proportionate to the cost of administration. The plaintiff has not shown any likelihood that it can prevail on its claim that the ordinance imposes an unconstitutional tax on its membership, and it is therefore entitled neither to a declaratory judgment in its favor nor to injunctive relief.
Because the plaintiff has failed to establish that it is entitled to a judgment declaring the ordinance invalid under any of the theories advanced in the sixteen counts of its Second Amended Complaint, the court need not consider whether the plaintiff has established irreparable harm or whether it has shown that it lacks an adequate remedy at law. The prayers for relief seeking a declaratory judgment and a temporary injunction are therefore denied, and judgment on the second amended complaint will enter in favor of the defendant.