Opinion
No. HHD-CV-04-4004887
May 25, 2006
The plaintiff, Bruce H. Gresczyk, the commissioner of the state of Connecticut Department of Agriculture (DOAg), brought this action against the defendants, Virginia Landis, individually, and Virginia Landis and Frederick Peacos, Jr. in their capacity as Trustees for the Rose Koniecko Irrevocable Trust, seeking to enjoin them from developing land located in Preston, Connecticut as a golf course. The plaintiff's complaint alleges that the commissioner of the DOAg, pursuant to a legislatively sanctioned program allowing for the preservation of farmland, purchased development rights from the defendants' predecessor in interest, Joseph Koniecko. The program, created pursuant to Chapter 422a of the General Statutes, allows the commissioner to buy development rights from farmers for non-agricultural purposes. The commissioner bought such development rights from the defendants' predecessor in title in the 1980s.
I. A. Factual Background
The plaintiff brings this action for declaratory and injunctive relief in order to prevent the development of a golf course on farm land, commonly known as Koniecko Farm in which the state owns certain development rights. In 1987, in consideration for the payment of two hundred thirty-two thousand six hundred three ($232,603.00) dollars, the state of Connecticut acquired the development rights on Koniecko Farm from its then owner, Joseph A. Koniecko, in order to preserve it in perpetuity as arable farm land.
The property referred to herein as "Koniecko Farm" has also been referred to by the present owners as "Ayer Farm" and "Broadbrook Country Club."
The commissioner of the DOAg is empowered by Chapter 422a to acquire "development rights," as that term is defined by General Statutes § 22-26bb(d), to "agricultural land," as that term is defined by § 22-26bb(a), on behalf of the state and to administer the state program to preserve that land.
"Development rights," means, in pertinent part, the "right of the fee simple owner of agricultural land to develop, construct on . . . or otherwise improve the land for uses that result in rendering such land no longer agricultural land, but shall not be construed to include . . . the right of the fee owner of agricultural land to develop, construct on . . . or otherwise improve the agricultural land to preserve, maintain, operate or continue such land as agricultural land, including construction thereof of residences for persons directly incidental to farm operation and buildings for animals, roadside stands and farm markets for sale to consumers of food products and ornamental plantings, facilities for the storing of equipment and products or processing thereof or such other improvements, activities, and uses thereon as may be directly or incidentally related to the operation of the agricultural enterprise, as long as the acreage and productivity of amble land for crops is not materially decreased and due consideration is given to the impact of any decrease in acreage or productivity of such arable land upon the total farm operation, except that new construction or modification of an existing farm building necessary to the operation of a farm on prime farmland, as defined by the United States Department of Agriculture, of which the state has purchased development rights shall be limited to not more than five percent of the total of such prime farmland . . . [and] the rights of the fee owner to provide for the extraction of gravel or like natural elements to be used on the farm for purposes directly or incidentally related to the operation of an agricultural enterprise or . . . the existing water and mineral rights, exclusive of gravel, of the fee owner." General Statutes § 22-26bb(d).
"`Agricultural land' means any land in the state suitable by reference to soil types, existing and past use of such land for agricultural purposes and other relevant factors for the cultivation of plants for production of human food and fiber or production of other useful and valuable plant products and for the production of animals, livestock and poultry useful to man and the environment, and land capable of providing economically profitable farm units, and may include adjacent pastures, wooded land, natural drainage areas and other adjacent open areas." General Statutes § 22-26bb(a).
The defendants, Virginia Landis and Frederick Peacos, Jr., are the trustees of the Rose Y. Koniecko Irrevocable Trust. In their capacities as trustees, they acquired the property that is the subject of this action, commonly known as Koniecko Farm, on June 9, 1993 via a quitclaim deed recorded in the town of Preston land records. As such, they became the successors in interest to Rose Y. Koniecko and, in turn, to her predecessor in title, Joseph A. Koniecko.
Prior to his conveyance of Koniecko Farm to Rose Y. Koniecko in May 1990, Joseph Koniecko conveyed to the state of Connecticut development rights, as that term is defined by § 22-26bb, to Koniecko Farm on December 17, 1986 by warranty deed recorded in the Preston land records. That deed was followed by a correcting deed, conveying those same development rights in and to Koniecko Farm, which correcting deed was dated December 23, 1987 and recorded in the Preston land records.
The defendant Landis, individually and as trustee, and the defendant Peacos, as trustee, have taken steps to develop the Koniecko Farm for use as a golf course. These steps have included the submission to the planning and zoning commission of the town of Preston for zoning and site plan approval to construct a golf course and an application for an inland wetlands permit for such construction.
In November 2004, the defendants notified the town of Preston of their intent to then begin actual construction of the golf course. On November 5, 2004, the commissioner of the DOAg commenced this action and sought a temporary injunction, which was granted.
The state maintains that the conveyance of development rights by Joseph Koniecko to the state in 1987 precludes the development of Koniecko Farm as a golf course because that conveyance granted to the state any rights on the part of the fee owner and his successors in interest, namely the defendants, to develop, construct on or otherwise improve Koniecko Farm for uses that would render it no longer agricultural land. In other words, after the conveyance of development rights to the state by Joseph A. Koniecko, the state claims that he and his successors could no longer develop the land for purposes that would make it unsuitable for farming.
B. Procedural Background
On December 22, 2004, the defendants filed six special defenses and two counterclaims. The plaintiff filed a motion to strike the six special defenses and a motion to dismiss both counterclaims. On January 31, 2005, the court, Beach, J., ruled almost entirely in the plaintiff's favor, striking all six special defenses and the first counterclaim. See Commissioner of Agriculture v. Landis, Superior Court, judicial district of Hartford, Docket No. CV 044004887 (January 31, 2005, Beach, J.) On September 8, 2005, the defendants moved to amend their answer and filed three new special defenses and an amended counterclaim of inverse condemnation. The plaintiff filed an objection to the amendment. On November 28, 2005, the court, Langenbach, J., granted the motion to amend and overruled the plaintiff's objection. The issues now before the court are: (1) the plaintiff's corrected motion to strike the defendants' three special defenses and their prayers for relief in their counterclaim seeking the appointment of an appraiser and attorneys fees, and (2) the plaintiff's corrected motion to dismiss the amended counterclaim of inverse condemnation on the basis of sovereign immunity and lack of standing.
In their previously stricken special defenses, the defendants alleged lack of standing, laches, res judicata, a violation of 18 U.S.C. §§ 1962(b) and 1962(c), the Racketeer Influenced and Corrupt Organizations Act (RICO), unclean hands and the DOAg's lack of jurisdiction due to the overriding authority of the United States Department of Agriculture and the town of Preston zoning authority. The first counterclaim claimed money damages for "undue delay," which Judge Beach ruled was not a recognized cause of action, and the second sounded in inverse condemnation.
Judge Beach denied what he erroneously referred to as plaintiff's motion to "strike" the second counterclaim because he believed a claim of sovereign immunity was best left to determination by way of summary judgment. While this court agrees that one should not move to strike on the basis of sovereign immunity, one can move to dismiss on that basis. See Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). The defendants appealed Judge Beach's ruling to the appellate court, which dismissed the appeal. A petition for certification to the Supreme Court was subsequently denied.
Both parties have filed memoranda of law. The court heard oral argument on March 13, 2006.
II. Standard of Review A. Motion to Strike
"Whenever any party wishes to contest . . . (2) the legal sufficiency of any prayer for relief in any . . . counterclaim . . . or (5) the legal sufficiency of . . . any part of [an] answer, including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof" Practice Book § 10-39(a). A prayer for relief should be "stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "The granting of a motion to strike a special defense is not a final judgment and is therefore not appealable." Mechanics Savings Bank v. Townley Corp., 38 Conn.App. 571, 573, 662 A.2d 815 (1995).
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A `speaking motion' to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).
B. Motion To Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." (Internal quotation marks omitted.) Practice Book § 10-31(a)(1). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 501. "The motion to dismiss . . . admits all facts which are well pleaded." Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). See also Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 866 A.2d 599 (2004). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner favorable to the pleader." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005). "The motion to dismiss . . . invokes the existing record and must be decided upon that alone. Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the [challenged portion of the pleading]." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 346-47.
At the commencement of oral argument on these motions, the defendants submitted an affidavit and other documentation, much of which is not appropriate for the purposes of consideration of the plaintiff's motion to strike or motion to dismiss. The "affidavit" is a brief in disguise; although the affiant is described as a self-employed landscaper, his affidavit presents a number of legal arguments substantially similar to those set forth in the defendants' brief and adds little to the arguments in the brief. There is information about the town of Preston's granting of a special exception for the golf course, a fact which the plaintiff doesn't dispute, although plaintiff questions its relevance, and a copy of the deed granting the development rights to the state, the existence of which is not in dispute, so the court will consider the deed. There are also copies of a prior court decision, Landis v. Department of Environmental Protection, Superior Court, judicial district of New London at Norwich, Docket No. 127137 (January 5, 2004, Hurley, J.T.R.), and General Statutes § 1-1(q), defining "agriculture" and "farming," which the court will consider.
A closing document, an article on turf grass science, a list of Connecticut agri-tourism sites, the notes of a June 2004 meeting of the Farmland Preservation Task Force and a list of development rights purchased as of September 2004 are evidentiary in nature and clearly do not contain only undisputed facts, as the DOAg questions the relevance of all of them. The court declines to consider any of these in ruling on these motions.
III. Discussion A Granting of the Defendants' Motion to Amend Their Answer Without Articulation Does Not Bar the Plaintiff From Filing Motions to Strike and to Dismiss The defendants argue that the court, Langenbach, J., in granting their motion to amend their answer over the written objection of the plaintiff, overruled the plaintiff's objections to the amendment, which challenged the legal sufficiency of the amended answer. Therefore, they argue, this court should accept Judge Langenbach's single-worded granting of their motion to amend as the law of the case. The court does not agree."Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties, and the negligence, if any, of the party offering the amendment." (Internal quotation marks omitted.) Pekera v. Purpora, 273 Conn. 348, 367, 869 A.2d 1210 (2005). The court, in granting or denying the motion, "assess[es] the burden which an amendment would impose on the opposing party in light of the facts of the particular case." (Internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn.App. 693, 696, 767 A.2d 1232 (2001). Absent an articulation as to the reasons for his decision, the court will not assume Judge Langenbach opined on the legal sufficiency of any portion of the amended complaint, as it is just as likely that he only considered the factors noted above. "The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial." (Internal quotations marked omitted.) Pekera v. Purpora, supra, 367.
Both the Practice Book and relevant statute are instructive regarding the factors for the court to consider on a motion to amend. Practice Book § 176 states: "The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor." For the purposes of this rule, a substituted pleading shall be considered an amendment. General Statutes § 52-130 reads substantially the same with regards to this issue. The factors for a court to consider, according to the statute and Practice Book, do not include the legal merits of the claim, or the jurisdiction over the proposed subject matter.
"There is further support for a court's refusal to address substantive issues on a motion to amend. The scope of review of a trial court's decision on a motion to amend a pleading is stated as follows: `A trial court has wide discretion in granting or denying amendments of pleadings and rarely will [an appellate] court overturn the decision of the trial court.' O'Brien v. Coburn, 46 Conn.App. 620, 625, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997). The scope of review of a trial court's decision on a motion to dismiss for lack of subject matter jurisdiction, however, is far from an abuse of discretion standard. See generally Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). If the court were to deny a motion to amend based on a lack of jurisdiction over the proposed subject matter, that ruling would improperly be subject to an abuse of discretion review. This factor alone prompts the court to not reach substantive arguments on such a benign motion." Martin v. O'Meara, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 970160364 (March 18, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 537). General Statutes § 52-130, Practice Book § 176 and the applicable case law make it clear to this court that it should not conclude that Judge Langenbach engaged in an analysis of the legal sufficiency or the merits of the proposed amendment when using his discretion to decide a request for leave to amend. See id. "Any arguments going to the sufficiency of the amended special defenses or counterclaim, or whether the court has jurisdiction over the subject matter of the amended counterclaim, are better suited for a motion to strike, motion to dismiss or other appropriate procedural vehicle that a challenging party might have available to it." Id. The court notes that "questions of subject matter jurisdiction may be raised at any time . . ." Alexson v. Foss, 276 Conn. 599, 604, 887 A.2d 872 (2006). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004); Santana v. Hartford, 94 Conn.App. 445, 457 A.2d (2006).
Finally, the court is mindful that in general, when arguments are made regarding the legal sufficiency of a complaint, as in a motion to strike, oral argument is available as of right. See Practice Book § 11-18(a). There is no corresponding, automatic right attached to a motion to amend or a request for leave to amend. Therefore, it logically may be concluded that since no argument as of right is available on a motion to amend, the legislature and/or rules committee never intended for the court to address the legal sufficiency or merits of an action on a motion to amend.
Based on the above discussion, and recalling that the "[f]actors to be considered include the length of the delay, fairness to the opposing parties, and the negligence, if any, of the party offering the amendment"; Pekera v. Purpora, supra, 273 Conn. 367; this court finds that it is usually inappropriate in ruling on a motion to amend to address the merits of the underlying action that is the subject of the motion. See Martin v. O'Meara, supra, Superior Court, Docket No. CV 970160364 (refusing to address substantive issues on motion to amend); contrast Richardson v. Utica Mutual Insurance Company, Superior Court, judicial district of Hartford, Docket No. CV 030823091 (October 28, 2004, Shapiro, J.) (denying motion to amend complaint where the plaintiff attempted to replead claims identical to those previously stricken and found legally insufficient).
IV. A. Defendants' First Special Defense
In the defendants' first special defense, they allege that their proposed golf course is beneficial to the environment because its turf mitigates carbon dioxide, constitutes an approved form of "agri-tourism" and/or constitutes a state-encouraged "greenway." The defendants argue that due to these beneficial factors, a golf course conforms to the state plan of conservation and development and that the plan conflicts with and supersedes the state farmland preservation program. The defendants also allege that the town of Preston's zoning commission has authority to override the effect of the state's development rights, and allege that the town approved the construction of a golf course on Koniecko Farm.
1. The State Plan of Conservation and Development Does Not Render the Farmland Preservation Program Unlawful
The farmland preservation program is contained in Chapter 422a, General Statutes § 22-26aa et. seq. The purpose of the farmland preservation program acknowledges "that the growing population and expanding economy of the state have had a profound impact on the ability of public and private sectors of the state to maintain and preserve agricultural land for farming and food production purposes; that unless there is a sound, state-wide program for its preservation, remaining agricultural land will be lost to succeeding generations and that the conservation of certain arable agricultural land and adjacent pastures, woods, natural drainage areas and open space areas is vital for the well-being of the people of Connecticut." General Statutes § 22-26aa.
Two years prior to the enactment of the farmland preservation program, the legislature enacted a state plan of conservation and development under the "Planning and Energy Policy" set forth in Chapter 297 of the General Statutes to be overseen by the Office of Policy and Management (OPM). OPM is charged by the legislature to consider a variety of benefits to the overall process of planning and conservation, among them a state greenway system, "patterns of commerce," linkages of affordable housing and land use objectives with transportation systems, the risks associated with "flooding, high winds and wildfire," the potential impact of natural hazards on infrastructure and property and siting recommendations to minimize such hazards See General Statutes § 16a-27.
The DOAg's farmland development rights acquisition program is required to consider the state plan of conservation and development as an "advisory document to the acquisition of development rights of any agricultural lands." General Statutes § 22-26cc(a). By its terms, the DOAg's farmland preservation program is in no way legally inconsistent with the state plan of conservation and development. These legislative provisions can be harmonized and, indeed, are complementary. The criteria that the DOAg is to apply in acquiring development rights to preserve farmland are consistent with the policy considerations of the state plan of development and conservation.
It is the obligation of a court presented with a constructional assertion that one statute supersedes another to make every attempt to construe them in a manner that maintains the integrity of both statutes. See Wayne v. Harkness, 60 Cal.2d 579, 588, 387 P.2d 377, 35 Cal. Rptr. 601 (1963). "It is not assumed that each one or the other of related statutes is meaningless; rather, such statutes will be so construed as to give each a field of operation." 73 Am. Jur. 2d, Statutes § 168 (2004). "[W]e read related statutes to form a consistent, rational whole, rather than to create irrational distinctions . . . [S]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law." Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002). The defendants argue that § 22-26cc(f) conflicts with the conservation and development plan because that section, which protects the state from liability for any pollution or contamination of the land, is anti-environment. This disclaimer of liability for environmental contamination to the underlying fee, since no fee interest is even acquired by the state when it acquires development rights to farmland, is not inconsistent in relation to any goal enunciated by the General Assembly in its call for a state plan of conservation and development and related policies. The development rights retained by the fee simple owners is to "develop, construct on, sell, lease or otherwise improve the agricultural land only for uses that result in the land's continued use as agricultural land." There is nothing inconsistent about this legislative statement in relation to the goals enunciated by the General Assembly in its call for a state plan of conservation and development.
The defendants also claim that golf courses containing turf grass mitigate carbon dioxide pollution and maintain that the OPM is instructed to include in the state plan a goal of "reducing carbon dioxide emissions within this state." General Statutes § 16a-27. The defendants urge the court to find that because reduction of carbon monoxide emissions is a state goal, the development of golf courses should never be precluded, and thus, a voiding of the DOAg's cause of action is appropriate. The plaintiff's complaint seeks to enforce a deed restriction on the defendant's property under the farmland preservation program. The defendant's claim that golf courses are environmentally friendly, if true, is legally and factually uncoupled from the issue of whether the development of the Koniecko Farm as a golf course with a 19,000 square foot clubhouse, sand traps, golf cart paths and parking lots, among other things, is prohibited on this property as a matter of law by the terms of the deed to the state and the provisions of Chapter 422a. A working farm, planted with crops, is as likely to have a similar impact upon carbon dioxide emissions as other plant materials, and the planting and harvesting of farm crops is completely consistent with the definition of agriculture, the purposes of the farmland preservation program and the state plan of conservation and development.
The defendants further allege that golf courses are "greenways" and assert that greenways are a goal of the plan of conservation and development. They conclude that the farmland preservation restrictions are therefore illegal because they are inconsistent with or superseded by the conservation plan to promote support of the development of a state greenways system. See General Statutes § 16a-27(a). There is nothing in the statutory language that defeats the plaintiff's cause of action or suggests that greenways are preferable to the preservation of farmland as a state goal. In fact, they both serve similar goals. Chapter 297 may speak to the development of greenways, but it does not negate the statutory provisions of the farmland preservation program or the property rights acquired by the state in this case.
The General Assembly's concern for the preservation of farming uses and the cultivation of agricultural commodities is actually antithetical to the development of land for intensive uses such as that which the defendants propose. For example, the state open space and watershed grant program distinguishes between the benefit of preserving the "local agricultural heritage" and proposed uses that are commercial or recreationally intensive. The latter do not qualify for grants, and one recreationally intensive use is a golf course. Compare General Statutes § 7-131d(b) with § 7-131d(c). "[W]hen construing a statute, we may look for guidance to other statutes relating to the same general subject matter, as the legislature is presumed to have created a consistent body of law." Cagiva North America, Inc. v. Chenk, 239 Conn. 1, 12 680 A.2d 964 (1996).
2. The Zoning Powers of the Town of Preston Do Not Override The Restrictive Reach of the State's Negative Easement
Judge Beach briefly addressed, and struck, a similar special defense in his ruling on the plaintiff's motion to strike the first of the defendants' original special defenses. Judge Beach ruled: "The final special defense claims that only the federal department of agriculture and the local zoning authorities have jurisdiction to enforce the state's claimed rights. I find no facts alleged which support this claim." Commissioner of Agriculture v. Landis, supra, Superior Court, Docket No. CV 04 4004887. Now, the defendants claim that the statute that defines agriculture, § 1-1(q), which provides that "[n]othing herein shall restrict the power of a local zoning authority under Chapter 124," prevents the state from enforcing its negative easement because the town of Preston zoning commission will approve the golf course. The defendants, however, provide no analysis of whether the town regulations include a golf course within any local ordinance, code provision or regulation defining "agriculture." The real intent of the statutory provision cited by the defendants is to allow local zoning regulations to define "agriculture" differently than it is defined in § 1-1(q). For example, in Wood v. Zoning Board of Appeals, 258 Conn. 691, 702-06, 784 A.2d 354 (2001), the plaintiffs argued that the collection of spring water fell within the meaning of "agriculture" and "farming" as defined in the statute, but the court held that because the term "agriculture" is expressly defined in the town code, the meaning of the word had to be ascertained on the basis of the town code definition and not by reference to the statutory definition. Even if the town of Preston does define agriculture to encompass a golf course, this case is not about the construction or application of local zoning enactments; it is a controversy about the interpretation and restrictive reach of a particular negative easement upon private land that has left the successors in title with very limited development rights. What zoning provisions or determinations of a municipal zoning commission have to do with what is "agriculture" within the ambit of their authority is legally irrelevant with respect to this case and the enforceability of a state farmland preservation restriction. Whether the town of Preston zoning commission approves of the golf course proposal in no way affects the status of the state's recorded development rights. The existence of a farmland development rights restriction upon property is completely distinct from what other uses of the land might have been permissible. The legality and enforceablility of this particular encumbrance is not within the ambit of the town zoning commission.
In sum, with respect to the first special defense, the defendants' reasoning does not support a conclusion that the state farmland preservation program is legally at odds with any goal or requirement for the state's plan of conservation and development, nor is it at odds with the town zoning laws. The thrust of state or municipal conservation and planning policy does not support what the defendants aver, and even were the averments true, they still would not defeat the commissioner's cause of action to preserve a development rights restriction duly granted to the state. Accordingly, the first special defense is legally insufficient to defeat the complaint and it should be stricken.
B. Defendants' Second Special Defense The plaintiff makes a gratuitous assertion in its complaint that the farmland preservation program is beneficial to the citizens of Connecticut, so the defendants aver that the program's administration is "not in the best interest of the well being of [Connecticut's] citizens" as their second special defense. They then allege a number of facts relevant to the history of various other acquisitions, but not the Koniecko acquisition in issue here. None of these best interest allegations are relevant to the issue in this case. The defendants in this special defense attempt to make a silk purse out of the sow's ear that was their RICO special defense in their first complaint, which was stricken. They allege, like private attorneys general, that the DOAg's program to acquire farmland development rights has "had a fraudulent scheme designed to reward corporate farming, legislative officers and other state officials by deliberately getting discount valued land from less influential citizens, targeting 65 year old citizens or older, excluding the heirs of this estate and taking control of the mineral estate in property without compensation or appraised value." They make no allegation that anything fraudulent or illegal occurred in connection with the transaction between the state and Joseph Konieko; rather, they refer to other transactions in a number of other towns and farmland preservation transactions involving state officials. A lawsuit is not a vehicle for a program and policy review; that is a legislative function. As Judge Beach noted in his January 31, 2005 ruling striking the defendants' prior special defenses, the farmland development rights restriction acquired from a previous owner, Joseph Koniecko, has no relation to other transactions for other properties, and "[t]here is no indication that the state dealt unfairly in any way with the defendants' predecessor in interest." Commissioner of Agriculture v. Landis, supra, Superior Court, Docket No. CV 04 4004887. Although the defendants allege no fraud on the part of the DOAg commissioner relevant to the transaction that led to the acquisition of the development rights to the farmland in this case, they want to assert a fraudulent scheme by claiming that other fraudulent transactions took place without alleging any specific facts to establish such other frauds. The legal issue here is the reach of the development rights restriction that exists on the defendants' property as the result of the exercise of statutory authority. The defendants' broad-based attack on the administration of the program, encompassing hundreds of farms since its inception in 1979, has no relevant place here and is not an appropriate special defense. As Judge Beach noted in his earlier decision, "[e]ven if there was some unfairness in the administration of the program, which apparently is alleged, there is nothing to suggest in the pleading that there was any unfairness as to this farm. It then becomes difficult to discern relevance to this particular cause of action." Id. Accordingly, none of the facts alleged in the second special defense, if proven, support any legal theory which would serve to avoid liability for the declaration of rights in the deed covenants and the defendant's alleged violation of the development rights statute. The second special defense should be stricken. C. Defendants' Third Special Defense 1. Whether or Not the Operation of a Golf Course is an "Agriculture Enterprise" for "Production of Turf Grass" within the Meaning of United States Department of Agriculture Agri-tourism Policy Is Irrelevant And Immaterial to the Instant CaseThe defendants claim in their third special defense that the "planting of turf grass on the defendants' golf course, alone, brings a golf course within the rules and definitions of the USDA Agri-Tourism policy." In the defendants' prior set of special defenses, all stricken by Judge Beach, the defendants had claimed that the USDA and the local zoning board alone had jurisdiction over the propriety of development plans for the Koniecko farm property. Whatever the USDA may have to say about agri-tourism or any policy advocating for its advancement are meaningless with respect to whether the state's development rights easement or its farmland preservation program should be enforced. The development rights at issue were acquired under Connecticut statutes with their own definitions of "agriculture" and "farming," and the defendants cite no legal authority to suggest that federal law or policy somehow preempts state law.
Under state law, whether a golf course is a turf grass farm or whether the golf course proposal will preserve wetlands are immaterial. The conveyance of the development rights to the state by Joseph Koniecko precludes construction of a golf course under Connecticut law. Koniecko made this conveyance for consideration. He reserved to himself and his successors in title the right to develop or improve the Koniecko Farm for those uses defined in § 1-1(q), for agriculture or farming, or to preserve, maintain, operate or continue such land as agricultural land, or for improvements that are directly or incidentally related to the operation of an agricultural enterprise, including the extraction of gravel or like elements to be used on the farm for purposes directly or incidentally related to its operation. Defendants admit that the conveyance from Koniecko to the state is in their chain of title and that they took title with notice of that conveyance. (See Defendants' Answer admitting to paragraph 15 of counts 1, 3, 5 and 6.)
The definition of "agriculture" in § 1-1(q), and the definition of "development rights" in § 22-26bb, are incorporated into the deed of conveyance by Koniecko to the state. "[T]he words `agriculture' and `farming' shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity . . . the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of . . . any agricultural commodity, including lumber, as an incident to ordinary farming operations . . ." General Statutes § 1-1(q). Section 1-1(q) defines "[t]he term `farm' [to include] farm buildings and accessory buildings thereto, nurseries, orchards, ranges, greenhouses, hoop houses and other temporary structures or other structures used primarily for the raising and, as an incident to ordinary farming operations, the sale of agricultural or horticultural commodities."
The defendants' term, "agricultural enterprise," is not included in any of the above enumerations. Essentially, the defendants have made an unconvincing attempt to argue that a golf course is a turf farm, but nowhere do they aver that the proposed golf course operation, unlike a real turf farm, would involve the cultivation and harvesting of turf as an agricultural or horticultural commodity.
V. A. The Counterclaim Alleging Inverse Condemnation Is Legally Deficient and/or Barred By the Doctrine of Sovereign Immunity
The defendants' amended counterclaim sounds in inverse condemnation and alleges that if the court grants the injunctive relief sought by the plaintiff, the state will have acquired a subsurface mineral estate and development rights to build single-family homes on the premises without paying just compensation to the defendants. In their prayer for relief to the counterclaim, they seek the appointment of an appraiser to determine the value of the property, compensatory damages, attorneys fees and other equitable or legal relief that the court deems appropriate. The defendants' request to amend their answer and special defenses replead only one of the original two counterclaims in their complaint. This sole remaining counterclaim, as now presented, still sounds in inverse condemnation, but alleges additional facts to support the claim. The plaintiff's objection to the original inverse condemnation counterclaim was also based on sovereign immunity. Judge Beach denied the objection, reasoning that sovereign immunity must be pleaded as a special defense and may thereafter form the basis of a motion for summary judgment. See Commissioner of Agriculture v. Landis, supra, Superior Court, Docket No. CV 04 4004887. As stated earlier, this court does not agree.
The filing of an amended pleading is a withdrawal of the original pleading. Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Bennett v. Automobile Ins. Co. of Hartford, 32 Conn.App. 617, 620, 630 A.2d 149 (1993), rev'd on other grounds, 230 Conn. 795, 646 A.2d 806 (1994).
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501. "[T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703 A.2d (2006).
Under the doctrine of sovereign immunity, "the state cannot be sued without its consent . . . [B]ecause the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004); Manifold v. Ragaglia, 94 Conn.App. 103, 114, 891 A.2d 106 (2006).
"In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends . . . This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others." (Citations omitted; internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 168, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 828 A.2d 547 (2003). Consequently, the Supreme Court has recognized three narrow exceptions in which a suit against the state or its officials may be maintained. They are: (1) where the state has expressly waived sovereign immunity through the enactment of legislation, either expressly or by force of a necessary implication, and has consented to suit under the specific circumstances prescribed in the legislation; Martinez v. Dept of Public Safety, 263 Conn. 74, 85-86, 818 A.2d 758 (2003); White v. Burns, 213 Conn. 307, 312-13, 567 A.2d 1195 (1990); (2) where an action seeks declaratory or injunctive relief based on a substantial claim that the state or an official of the state has violated a constitutional right of the plaintiff. Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977); or (3) where a plaintiff seeks declaratory or injunctive relief based on a substantial claim that a state official has acted in excess of his statutory authority and has thereby violated a right of the plaintiff. Doe v. Heintz, supra, 31; Miller v. Egan, supra, 315.
In Tamm v. Burns, 222 Conn. 280, 610 A.2d 590 (1992), our Supreme Court specifically considered whether an alleged claim of inverse condemnation should have been dismissed by the trial court on the basis of the bar of sovereign immunity. Id., 283. Inverse condemnation is not universally barred in this jurisdiction. Id., 284 quoting Textron v. Wood, 167 Conn. 334, 342 355 A.2d 307 (1974). A claim of confiscation by the state in a constitutional sense, however, requires specific pleading of certain material facts. See Tamm, supra, 284. The court in Tamm held that failure to plead as required, so as to put a constitutional claim properly before the trial court rendered the complaint liable to dismissal. Id. The court explained: "The word `taken' in article first, 11 of our state constitution means the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain . . . Although property may be `taken' without any actual appropriation or physical intrusion . . . there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed . . . A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed . . . To survive a motion to dismiss on the ground of sovereign immunity, a complaint must allege sufficient facts to support a finding of a taking of land in a constitutional sense." (Citations omitted; internal quotation marks omitted.) Id.
The defendants plead that the temporary injunction entered by this court pending the resolution of the merits of the action for declaratory judgment, if continued, constitutes inverse condemnation. That allegation is patently immaterial to the proper pleading of a claim of inverse condemnation. The temporary injunction, entered after hearing by this court, Beach, J., maintains the status quo ante pending consideration of the action initiated by the commissioner of the DOAg to have the state's farmland development rights in the property of the defendants declared and adjudged by the court. The status quo would, in fact, keep the property in the status that it has existed in for centuries: agricultural use. Were the temporary injunction not in place, the defendants would, consistent with their announced intention, be free to develop the property in a manner claimed inconsistent with the state's development rights. Therefore, the DOAg's initiation of a declaratory judgment action and suit for injunction, based upon the development rights ceded to the state by the defendants' predecessor in interest, and the court's entry of a temporary injunction pending final resolution of the controversy, in and of themselves cannot, be an action confiscatory in nature.
The defendants' counterclaim does not allege that the defendants have been deprived of the value of their property because the action of the state has destroyed or nullified its value. The defendants' claim is twofold. They first allege that the state has "acquired" the subsurface mineral estate "for which no compensation was paid to the Defendants." They further allege that their property has an assessed value of $750,000 and a subdivision in single family residences could render it even more valuable. The DOAg's legal authority to acquire farmland preservation development rights states unequivocally that "development rights" "shall not be construed to include . . . (3) the rights of the fee owner to provide for the extraction of gravel or like natural elements to be used on the farm for purposes directly related to the operation of the agricultural enterprise or (4) the existing water and mineral rights, exclusive of gravel, of the fee owner . . ." General Statutes § 22-26bb(d). The defendants' allegations, therefore, that "said action" (undefined by the defendants, other than entry of the temporary injunction) "allows the state to acquire a subsurface mineral estate for which no compensation was paid to the Defendants," and that "through its Development Rights Program, [the state] plans to control subsurface mineral estates," are simply conclusory, factually unsupported and legally untenable allegations in reference to what "development rights" mean in Connecticut under the state program for the preservation of agricultural land. See General Statutes § 22-26aa, et. seq. The action by the commissioner of the DOAg legally cannot affect the subsurface mineral rights of the defendants. Specifically as to gravel, concerning which the defendants plead no specific facts at all other than to state a general fact that there is gravel in the state as a whole, the same statute allows for the extraction of gravel in a manner consistent with the acquisition of development rights. The defendants' allegations therefore lack the specificity that is required to put in issue the constitutionality of the commissioner's acquisition of farmland development rights in terms of a claim under the Constitution of Connecticut, article first, § 11, or the fifth amendment to the United States constitution. Tamm v. Burns, supra, 222 Conn. 292; see also Upson v. State, 190 Conn. 622, 626, 461 A.2d 991 (1976); Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976).
One claiming to fall within any of the exceptions to the bar of sovereign immunity must clearly show that the exception is applicable. See Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1998) (motion to dismiss declaratory judgment action on ground of sovereign immunity granted for failure to "clearly demonstrate . . . incursion upon constitutionally protected rights"); Horton v. Meskill, supra, 172 Conn. 624; see also Tuchman v. State, 89 Conn.App. 745, 754, 78 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). Accordingly, since the allegations of paragraphs one, two and three of the defendants' counterclaim fail to engage the constitutional standard of destruction or nullification of value by which the defendants' use of the property could be substantially interfered with, these allegations cannot form the basis for a claim of inverse condemnation. This is especially true where the commissioner's suit is predicated upon the state's prior, contracted for acquisition of the development rights of the Koniecko farm for valuable consideration. There is no regulatory "confiscation" at issue in this case owing to the imposition of some "burden" upon the property by government for which the owners have received no just compensation. See Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 74-75, 808 A.2d 1107 (2002) (discussing contours of inverse condemnation action).
Both allegations of diminution in the value of the property owing to the existence of a farmland development restriction upon it fail to meet the standard for a proper claim of inverse condemnation as outlined by our Supreme Court in Tamm, or any properly advanced constitutional claim against the state as explained in Upson and Barde. Specifically, there is no allegation that all reasonable use of the property of the defendants has been confiscated by the mere existence of a prior contract for farmland preservation restriction on the property. The current use to which the property has been put for over two hundred years can continue: a working farm. Indeed, the defendants make no claim that the farm can no longer be a farm.
The defendants' claim is that they are restricted from developing the farm into something that is non-agricultural, that is, a gravel mine or a residential subdivision. Of course, the farmland preservation restriction is aimed at protecting farmland from precisely such uses. General Statutes §§ 22-26aa and § 22-26cc. The allegation that the fair market value of the land is denied to the defendants is incorrect. The fair market value of the property has always been available to them subject to the farmland development rights that the state has acquired. See, e.g., Cecarelli v. Board of Assessment Appeals, 49 Conn.Sup. 125, 131, 863 A.2d 768 (2003), aff'd, 272 Conn. 485, 863 A.2d 677 (2005). Accordingly, a "market value" exists, and there is lacking any proper allegation by the defendants of nullification of value resulting from the existence on the land of the development rights restriction. This fails the requirements of pleading of confiscation in a constitutional sense required by our Supreme Court. See Tamm v. Burns, supra, 222 Conn. 284; Barde v. Board of Trustees, supra, 207 Conn. 63.
Exclusion of the owner from his use and enjoyment of his property which renders it unusable for any reasonable and proper purpose is the essence of a properly pleaded "taking" claim. No allegation in the defendants' counterclaim exists as a predicate to such a claim. Tamm v. Burns, supra, 222 Conn. 284; Smith v. Town of Mendon, 4 N.Y.3d 1, 21, 822 N.E.2d 1214, CT Page 10032 789 N.Y.S.2d 696 (2004) (conservation easement restriction limiting future development use of portion of property did not constitute addressable constitutional violation because owner did not lose right to control access by general public). Here, the existence of a farmland development rights restriction is, as a matter of law, no physical invasion of the defendants' property, no matter how the pleadings are construed. Moreover, the rule stands that "some diminution in the total value of property [does] not, without more, justify a conclusion that there has been an unconstitutional taking." (Internal quotation marks omitted.) Cohen v. City of Hartford, 244 Conn. 206, 222, 710 A.2d 746 (1998). "[An] owner is not entitled to compensation for the diminution in value of his property resulting from . . . a valid exercise of the police power." (Internal quotation marks omitted.) Tamm v. Burns, supra, 286, citing DeMello v. Plainville, 170 Conn. 675, 679, 368 A.2d 71 (1976). See also Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 133, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The defendants, significantly, do not claim that they cannot use the property for any reasonable and proper purpose. They can operate a farm on their property. They only claim that they cannot develop the property consistent with the extent to which unrestricted fee estates may be developed. To survive a motion to dismiss on the ground of sovereign immunity in a case alleging inverse condemnation, the counterclaim "must allege sufficient facts to support a finding of a taking of land in a constitutional sense." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 319, 875 A.2d 498 (2005). The defendants state that they are relying on the holding in Cumberland Farms and assert that they have alleged facts sufficient to comport with the holding in that case. The defendants have provided the court with no real analysis of how the decision in Cumberland Farms is distinguishable from the description of an inverse condemnation action in Tamm, and the court's review of the former finds no true distinction. Cumberland Farms discusses the substantial resemblance between an eminent domain proceeding and inverse condemnation, noting they are for practical purposes alike, as inverse condemnation requires proof that the claimant's property has been "taken in fact" by the government, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. See Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 73. The defendants actually argue nothing more than a diminution in value which has resulted due to their predecessor's grant of development rights to the state to preserve the land as farmland in perpetuity. As noted above, such a diminution in value is insufficient to assert inverse condemnation. Thus, because the requisite level of governmental intrusion with property rights is not alleged, the defendants' counterclaim of inverse condemnation is not legally sufficient as pleaded. Since the actions of the state in no way rise to the level of an unconstitutional regulatory or physical taking, the bar of sovereign immunity has not been lifted and the counterclaim should be dismissed.
B. The Defendants' Prayers For Relief For Appointment Of An Appraiser and Attorneys Fees
Since the court has dismissed the defendants' counterclaim, the court need not address the sufficiency of the prayers for relief appended to it.
IV. Conclusion
For the foregoing reasons, the plaintiff's motion to strike the defendant's three special defenses are granted and all of those items are hereby stricken. The defendants' counterclaim is hereby dismissed.