Opinion
No. CV08-4016925S
May 18, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
This matter is before the court on the defendant's motion to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies. The court, after review of the facts and law, denies the motion to dismiss.
FACTS
On July 9, 2008, the plaintiff, Thomas Mazuroski, commenced this action by service of process on the defendant, the Bible Church of Waterbury. This action arises out of the defendant's alleged nuisance that causes the plaintiff various damages including, "anxiety, extreme emotional and financial distress, loss of sleep, loss of appetite, nausea, headaches, and neck, shoulder and back pain." In addition, the defendant's activities have allegedly "diminished the market value of plaintiff's property, and changed the character of plaintiff's property and the immediate neighborhood."
The facts, as alleged by the complaint, are as follows. The plaintiff owns and resides in premises located at 73 Dixon Street in Waterbury. The defendant is a non-stock corporation "engaged as a religious organization, with its office and principal place of business located at 240 Dwight Street," and additionally owns the "premises located directly across the street from the plaintiff's . . . property . . . located at #64-66 Dixon Street . . . and #72-74 Dixon Street" in Waterbury. On May 19, 1982, the City of Waterbury adopted a comprehensive zoning ordinance which took effect on July 1 of that year. Pursuant to said ordinance, all of the Dixon Street properties owned by the parties "are located in a Low Density Residence District," meaning that the use of this land is restricted to one-and two-family dwellings, subject to certain exceptions.
After the adoption of this ordinance, however, the defendant engaged in multiple construction projects that converted the one-and two-family residences located on its property into "buildings designed and used solely for business purposes, namely as places of religious worship, offices, schools, warehousing, storage and distribution," thus violating Waterbury's zoning ordinance. This violation of the zoning ordinance continuously causes harm to the plaintiff in the form nuisance including congestion and traffic in front of his house, aesthetic damage to his landscaping, multiple trespasses onto his property, threats, various pest infestations and blocked access to his driveway. Based on these facts, the plaintiff seeks to enjoin the defendant from its current activities, as well as recover monetary damages for past harms.
On December 2, 2008, the defendant filed a motion to dismiss "for lack of jurisdiction of the subject matter because the plaintiff has failed to exhaust his administrative remedies." Specifically, in its memorandum of law in support, the defendant argues that the plaintiff "filed two complaints with the Zoning Officer that resulted in decisions and twice had an opportunity to appeal those decisions to the zoning board of appeals," but failed to do so. Attached to the defendant's memorandum of law in support are copies of correspondence dated March 9, 2005 and January 25, 2007, from the land use officer, informing the plaintiff of the status of his multiple complaints. In response, the plaintiff filed his memorandum of law in objection to defendant's motion to dismiss on February 25, 2009. Although the plaintiff essentially admits to not having exhausted his administrative remedies, he contends that his complaint qualifies for an exception to the general rule of exhaustion. The matter was heard at short calendar on March 2, 2009.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008) "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
Generally, "[b]ecause the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Emphasis added; internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The Supreme Court, however, has identified specific circumstances when a plaintiff need not exhaust his administrative remedies prior to commencing suit. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 559-61, 529 A.2d 666 (1987). In Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981), the Supreme Court described one such exception: "[A]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation." (Internal quotation marks omitted.) The court reasoned that, "[t]he relief sought and the issues raised are distinctly equitable in nature. To hold that the plaintiffs had an adequate remedy at law which required that they exhaust their administrative remedies before the zoning board of appeals is to ignore the claims made and the nature of the action." (Internal quotation marks omitted.) Id., 69-70. Additionally, the Supreme Court has provided that it cannot emphasize "too strongly . . . the necessity for clear and precise allegations of specific and material claims of damage in order to establish the threshold requirement for this exception to the exhaustion doctrine." Cummings v. Tripp, 204 Conn. 67, 76, 527 A.2d 230 (1987).
In this case, the plaintiff pleads a cause of action sounding in nuisance that alleges specific and material damages, such as multiple aesthetic harms to his property, and seeks to enjoin the defendant's activities. Accordingly, the court finds that the plaintiff has satisfied this particular exception to the doctrine of exhaustion.
Regarding the plaintiff's claims for monetary damages in addition to an injunction, the court notes that plaintiffs invoking this exception in previous cases have similarly sought such remedies. See Cummings v. Tripp, supra, 204 Conn. 80, Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn.App. 411, 415-16, 717 A.2d 824 (1998); Stern v. Boeringer, Superior Court, judicial district of Danbury, Docket No. 30 89 95 (November 17, 1992, Fuller, J.) [8 Conn. L. Rptr. 135] Much like an injunction, "if the plaintiffs . . . [prove] their right to recover ascertainable money damages, the administrative remedy would not have been adequate because administrative relief cannot encompass a monetary award. When administrative relief is inadequate, [the Supreme Court] do[es] not require a party to exhaust administrative remedies." Cummings v. Tripp, supra, 204 Conn. 80. Thus, the court finds that this exception to the doctrine of exhaustion encompasses monetary damages in addition to injunctive relief.
For the aforementioned reasons, the court holds that the plaintiff need not exhaust his administrative remedies because of the exception articulated by the Supreme Court in Reynolds and its prodigy. The court, therefore, finds that it has subject matter jurisdiction over this case. Accordingly, the defendant's motion to dismiss is denied.