Opinion
No. CV 06-4012161-S
June 25, 2007
MEMORANDUM OF DECISION
Stephanie and Gary Phipps were tenants at 111B Pearl Street in Enfield (premises), owned by Douglas Johnson. The Phipps were receiving assistance with rent payments from the State of Connecticut Department of Social Services (DSS) through the Temporary Assistance for Needy Families program.
One of the Phipps' minor children tested positive for lead poisoning. Two separate venous blood tests revealed high levels of lead in the child. North Central District Health Department (North Central), local director of health for Enfield, conducted inspections of the premises between August 16 and 19, 2005, revealing deteriorated lead-based paint surfaces.
On August 23, 2005, as a result of the premises inspections and child's blood tests, William H. Blitz, the Director of Health for North Central issued an order pursuant to General Statutes § 19a-111. The order required the Phipps, tenants of the premises, to vacate the premises. The order also required Johnson, the owner of the premises, to remove, abate or otherwise correct the conditions causing the lead paint violations.
General Statutes § 19a-111. Investigation. Preventive measures. Relocation of families. Reports. Regulations. Upon receipt of each report of confirmed venous blood lead level equal to or greater than twenty micrograms per deciliter of blood, the local director of health shall make or cause to be made an epidemiological investigation of the source of the lead causing the increased lead level or abnormal body burden and shall order action to be taken by the appropriate person or persons responsible for the condition or conditions which brought about such lead poisoning as may be necessary to prevent further exposure of persons to such poisoning. In the case of any residential unit where such action will not result in removal of the hazard within a reasonable time, the local director of health shall utilize such community resources as are available to effect relocation of any family occupying such unit. (Emphasis added.)
The Phipps vacated the unit on August 23, 2005. The Phipps received relocation assistance from DSS; however, the Phipps had unreimbursed housing and storage costs in the amount of $393.42 which were not paid by DSS. The Phipps sought relocation assistance from North Central for these costs. North Central denied the request.
On February 26, 2006, the Phipps filed an administrative appeal with the Department of Economic Development (DECD), seeking relocation assistance pursuant to General Statutes § 8-266 and § 8-278. The DECD held a hearing at which the following people testified: William Blitz, Director of Public Health for North Central; Michael Caronna, Director of Environmental Services for North Central; Barbara Titus, social worker from DSS; and Stephanie Phipps. On August 15, 2006, the DECD sustained the Phipps' appeal and ordered North Central to pay to the Phipps relocation costs that were not paid by DSS in the amount of $393.42.
General Statutes § 8-266. Short title: Uniform Relocation Assistance Act. Purpose. Policy. This chapter shall be known as the "Uniform Relocation Assistance Act." The purpose of this chapter is to establish a uniform policy for the fair and equitable treatment of persons displaced by the acquisition of real property by state and local land acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision. Such policy shall be uniform as to (1) relocation payments, (2) advisory assistance, (3 assurance of availability of standard housing, and (4) state reimbursement for local relocation payments under state assisted and local programs.
General Statutes § 8-278. Appeals to commissioners. Any person or business concern aggrieved by any agency action, concerning their eligibility for relocation payments authorized by this chapter may appeal such determination to the Commissioner of Transportation in the case of relocation made necessary by a transportation project or to the Commissioner of Economic and Community Development in the case of relocation made necessary by any other state agency program or project. . .
The Phipps also filed a complaint in the Superior court, Judicial District of Hartford, seeking injunctive relief compelling North Central and the Town of Enfield to cease displacing persons due to code enforcement without providing relocation assistance pursuant to General Statutes § 8-266. Phipps v. North Central District Health Department et al., CV064022165, 2006 Conn.Super. LEXIS 1339 (Jun. 21, 2006). North Central filed a motion to dismiss for lack of jurisdiction, which was granted.
On September 22, 2006, North Central filed this administrative appeal against the DECD. North Central, the Department of Economic and Community Development, and the Phipps have all filed briefs. The matter was heard by the court on April 23, 2007.
AGGRIEVEMENT
General Statute § 4-183 provides that "a person who has exhausted all administrative remedies. . . and who is aggrieved by a final decision may appeal to the Superior Court. . ."
There is no dispute that the DECD rendered a final decision ordering North Central to pay relocation costs in the amount of $393.42 to the Phipps, and that North Central did pay those costs. The court finds that North Central is aggrieved.
STANDARD OF REVIEW
It is well-established that great deference is given to the construction of a statute by the agency charged with its enforcement. "Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . We also have held that. . . when a state agency's determination of a question of law has not previously been subject to judicial scrutiny. . . the agency is not entitled to special deference." Town of Wallingford v Department of Public Health, 262 Conn. 758, 772 (2003).
The defendants claim that the question of law has been subject to previous judicial review in Dukes v. Durante, 192 Conn. 207 (1984). It is true that that decision suggests that "building code" in the URAA is broad enough to include "health code" but it does not address the question of whether the utilization of "community resources" limits the plaintiff's obligation.
"Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385 (1988).
DISCUSSION
North Central appeals on the grounds that: (1) the Department of Economic and Community Development lacked jurisdiction to decide the appeal; and (2) the DECD's interpretation of § 19a-111 and § 8-266 constitutes an error of law.
Although North Central raised the questions of abuse of discretion by DECD, and DECD's exceeding its authority, neither was argued in its brief.
JURISDICTION
"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Stepney, LLC v Town of Fairfield, 263 Conn. 558, 563 (2003).
North Central claims that because the Phipps' order to relocate was issued by the Department of Health pursuant to § 19a-111, jurisdiction properly rests with the Department of Health pursuant to § 19a-229 and § 19a-2a. North Central argues that the Phipps' failure to file a timely appeal with the Department of Health pursuant to § 19a-229 constituted a failure to exhaust administrative remedies. North Central argues that the Phipps appealed to the wrong agency. The court does not agree. To determine the jurisdictional issue, this court must determine whether the authority granted to the Commissioner of Public Health "would have enabled the commissioner to provide the plaintiff with the appropriate relief." Stepney, LLC, 263 Conn. 528, 566.
General Statutes § 19a-229. Appeal. Any person aggrieved by an order issued by a town, city or borough director of health may appeal to the Commissioner of Public Health not later than three business days after the date of such person's receipt of such order.
General Statutes § 19a-2a. Powers and duties. The Commissioner of Public Health shall employ the most efficient and practical means for the prevention and suppression of disease and shall administer all laws under the jurisdiction of the Department of Public Health and the Public Health Code. . . He shall have authority over directors of health and may, for cause, remove any such director. . . He shall assist and advise local directors of health in the performance of their duties, and may require the enforcement of any law, regulation or ordinance relating to public health. . . Whenever he determines that any provision of the general statutes or regulation of the Public Health code is not being enforced effectively by a local health department, he shall forthwith take such measures, including the performance of any act required of the local health department to ensure enforcement of such statute or regulation and shall inform the local health department of such measures.
North Central argues that the lead statute obligates it to assist a displaced family with community resources but does not obligate it to assist with a displaced family's relocation costs. North Central does not cite to any statute within the health code that provides financial relocation assistance. Therefore, although the Phipps sought financial relocation assistance from North Central, North Central maintains that such assistance falls outside both the scope of the lead statute and outside the purview of the Department of Health. North Central maintains that the Department of Health does not possess the authority to provide the requested relief.
North Central argues that its denial of the Phipps' request for financial relocation assistance constituted an "order" pursuant to which the Phipps should properly have appealed to the Department of Health. At the same time, however, North Central argues implicitly that an appeal to Department of Health would be futile because the statute does not authorize financial relocation assistance for lead hazard violations.
General Statute § 8-266 (URAA) provides a "uniform policy for the fair and equitable treatment of persons displaced," and § 8-267 authorizes relocation payments for persons who move "as the direct result of code enforcement activities." The URAA does not identify the Department of Health as having any role in determining relocation assistance eligibility. Likewise, while the lead statute does not specifically cite to the URAA, there is also no authority that precludes a family ordered to move pursuant to the lead statute from seeking relocation assistance under the URAA.
The Phipps' appeal to DECD claimed aggrievement not by the order of the relocation itself or even by the community resources utilized by North Central in helping the Phipps to relocate. The Phipps' appeal to DECD claimed aggrievement solely due to the unreimbursed housing and storage costs resulting from the relocation.
The court concludes that DECD, the agency with authority for appeals of URAA decisions, is the correct agency to decide the Phipps' appeal for financial relocation assistance pursuant to General Statute § 8-278. The DECD correctly claimed jurisdiction to determine whether relocation assistance is available to persons displaced as a result of code enforcement. The Phipps properly exhausted their administrative remedies by bringing their URAA appeal to the DECD. This court has jurisdiction.
STATUTORY INTERPRETATION OF THE LEAD STATUTE (§ 19A-111) AND URAA (§ 8-266)
"As in all matters of statutory interpretation, [the court] appl[ies] a de novo standard of review on appeal because the issue is one of law. . . When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 676-77 (2006).
"It is axiomatic that we construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. . . If there are two possible interpretations of a statute, the court will adopt the more reasonable construction over one that is unreasonable." Kelly v. City of New Haven, 275 Conn. 580, 616 (2005).
Pursuant to General Statute § 1-2z, to determine the meaning of a statute, the first consideration is the "text" of the statute and "its relationship to other statutes." If the statutory text is plain and unambiguous and does not yield absurd or unworkable results, use of extratextual evidence of the meaning of a statute is prohibited. Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007).
General Statutes 1-2z. Plain meaning rule. The meaning of a statute shall, in the first instance, be ascertained on the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall be not be considered.
General Statutes § 1-1(a) provides in relevant part: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language. . . To ascertain that commonly approved usage, we look to the dictionary definition of the term." Stone-Krete Construction, Inc., 280 Conn. 672, 677-78.
THE LEAD STATUTE
The legislature is presumed to know how to use limiting terms when it chooses to do so, and to know how to draft legislation consistent with its intent. AvalonBay Communities, Inc. v. Zoning Commission of the Town of Stratford, 280 Conn. 405 (2006).
The lead statute provides that when a lead hazard cannot be removed in a reasonable time "the local director of health shall utilize such community resources as are available to effect relocation of any family occupying such unit." § 19a-111.
North Central claims that the lead statute provides a comprehensive and exclusive remedy for families ordered to relocate due to lead violations. North Central reads the statute to mean that the local director shall use only available "community resources" to relocate families.
In the absence of a statutory definition of "community resources," North Central provides common dictionary definitions of the words "community" (a "joint ownership or participation") and "resource" (an "action or measure to which one may have recourse in any emergency;" "a possibility of relief or recovery; an ability to meet and handle a situation").
North Central then concludes that, in enacting the lead statute, the legislature "intended that the local director of health need only refer those displaced because of lead to those agencies empowered to provide reimbursement expenses," (emphasis added) and that the legislature did not intend for the local health director to pay relocation expenses. North Central also cites to § 45a-654(g)(2) of the probate code, which defines the term "community resources" to include agencies such as DSS. It is true that the Phipps received substantial financial relocation assistance from DSS. North Central concludes that DSS is a "community resource" and, as such, is responsible for payment to the Phipps. The Phipps, however, received assistance from DSS as a result of the family's participation in the DSS Temporary Assistance for Needy Families program.
This section defines "community resources" in the context of a long-term placement made by a temporary conservator: General Statutes § 45a-654(g)(2). The report shall set forth the basis for the temporary conservator's determination, what community resources have been considered to avoid the placement, and the reasons why the respondent's physical, mental and psychosocial needs cannot be met in a less restrictive and more integrated setting. Such community resources include, but are not limited to, resources provided by the area agencies on aging, the Department of Social Services, the Office of Protection and Advocacy for Persons with Disabilities, the Department of Mental Health and Addiction Services, the Department of Mental Retardation, any center for independent living. . .
Under North Central's reading of the statute, its obligation is to refer families to "community resources" such as DSS for assistance with relocation due to lead violations. However, the question is not whether DSS is a community resource, but whether North Central is obligated to make payments under URAA as well as referrals to "community resources."
North Central argues then that, apart from the language of the lead statute, the legislature did not provide health districts with sufficient funding to include such payments as relocation assistance. This is neither clear nor particularly relevant.
DECD counters that North Central's assumption wrongly inserts the word "only" into the statute so that the director of public health shall utilize "only" such community resources as are available to effect relocation.
The court agrees with DECD that if the legislature intended the district health department to utilize "only" community resources, the legislature would have written the lead statute to include the word "only." The court does not read the word "only" to be stated or implied in the lead statute. The statute does not limit North Central's ability to assist families whom it displaces for purposes of lead enforcement to "only" utilizing community resources.
THE UNIFORM RELOCATION ASSISTANCE ACT
The URAA, General Statute 8-266, provides: "The purpose of this chapter is to establish a uniform policy for the fair and equitable treatment of persons displaced. . . by building code enforcement activities. . . Such policy shall be uniform as to (1) relocation payments. . . and (4) state reimbursement for local relocation payments under state assisted and local programs."
The next section defines a "state agency" as "any department, agency or instrumentality of the state," and "displaced person" as one who "moves as the direct result of code enforcement activities." General Statutes 8-267(1) and (3).
General Statutes § 8-267(1) "State agency" means any department, agency or instrumentality of the state or of a political subdivision of the state, or local housing authorities. . . General Statutes § 8-267(3) "Displaced person" means (a) any person who, on or after July 6, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property. . . or (b) any person who so moves as the direct result of code enforcement activities or a program of rehabilitation of buildings pursuant to such governmental program or under such governmental supervisions. . . (emphasis added).
Our Supreme Court determined that the terms "building code enforcement activities" in § 8-266 and "code enforcement activities" in § 8-267(3) are used interchangeably, compelling the conclusion "that "building code" in the URAA is a generic term that embodies all codes dealing with the health and safety requirements of buildings." Dukes v. Durante, 192 Conn. 207, 213 (1984) (holding that the URAA applies to housing code enforcement, in addition to building code enforcement) (emphasis added).
The court distinguishes the Federal Uniform Relocation Assistance as "the federal statute requires an acquisition while our statute does not." Dukes, 192 Conn. 207, 219.
The court added, "common sense and reason compel the conclusion that the defendants cannot act under the housing code, which is to protect the health and safety of the occupants, and then abandon the displacees. . . in those buildings where displacement is necessary, the nomenclature of the violations is irrelevant." Id. at 221.
The court noted that "there is no legislative history accompanying the enactment of the URAA in 1971." Id. at 215. The court found the legislative history accompanying amendments to the URAA in 1979 and 1982 persuasive as "the legislature envisioned the act to apply to all persons forced to move because of any government caused displacement" and "[t]hese amendments and their legislative history demonstrate that the legislature understood the term "building code" to be generic." Id. at 216-17 (emphasis added). The DECD determined the Phipps were a "displaced person" pursuant to § 8-267 and ordered payment pursuant to § 8-268. The local director of health inspected the premises where the Phipps were living and, based on his finding of a hazardous level of lead paint, made a correlation between the Phipps' child's lead poisoning and the lead hazard in the premises. As a result, the health director ordered the Phipps to relocate, and the owner of the premises to remove the lead hazards on the premises.
General statutes § 8-268. Payment for displacement expenses and losses. Moving expenses and dislocation allowances. Fixed payments. Landlord's responsibility in certain cases. (a) Whenever a program or project undertaken by a state agency or under the supervision of a state agency will result in the displacement of any person on or after July 6, 1971, the head of such state agency shall make payment to any displaced person, upon proper application as approved by such agency head, for (1) actual reasonable expenses in moving himself, his family, business, farm operation or other personal property, (2) actual direct losses of tangible personal property as a result of moving, provided whenever any tenant in any dwelling unit is displaced as a result of the enforcement of any code to which this section is applicable by any town, city or borough or agency thereof, the landlord of such dwelling until shall be liable for any payments made by such town, city or borough pursuant to this section or by the state pursuant to subsection (b) of section 8-280, and the town, city or borough or the state may place a lien on any real property owned by such landlord to secure repayment to the town, city or borough or the state of such payments, which lien shall have the same priority as and shall be filed, enforced and discharged in the same manner as a lien for municipal taxes under chapter 205. (Emphasis added.)
The court finds the language of General Statutes § 8-268 clear and unambiguous: "[w]henever a program or project undertaken by a state agency or under the supervision of a state agency will result in the displacement of any person. . . the head of such state agency shall make payment" (emphasis added). North Central, a department pursuant to its formation under General Statute § 19a-241, is a "state agency" as defined in the URAA. North Central ordered the Phipps to relocate. It therefore is responsible for making payment.
General Statues § 19a-241. Formation of district departments. (a) Towns, cities and boroughs, by vote of their respective legislative bodies, after a public hearing, may unite to form district departments of health, which shall be instrumentalities of their constituent municipalities. . .
North Central's argument that it does not have the financial resources to pay relocation costs that result from its own orders is unpersuasive. North Central may, for example, budget for relocation costs or perhaps seek repayment from the premises owner.
Finally, North Central's arguable distinction between housing and health codes does not apply in this case. While the Phipps were ordered to relocate pursuant to the lead statute, which falls under the rubric of the health code, the order served the same purpose as that of the housing code, "which is to protect the health and safety of the occupants." Dukes, 192 Conn. 207, 221. And here, as in Dukes, North Central cannot act under the health code to displace residents, and then abandon those it displaced.
CT Page 11304
READING OF THE LEAD STATUTE AND THE URAA TOGETHER
"[T]he legislature is always presumed to have created a harmonious and consistent body of law. . . [T]his tenet of statutory construction. . . requires [this court] to read statutes together when they relate to the same subject matter. . . [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them. . . This principle is in accord with the directive of § 1-2z to consider a statute in relationship to other statutes on the same subject matter in order to determine whether its meaning is plain and unambiguous." (Internal quotation marks omitted.) Board of Education of the Town of Hamden v. State Board of Education, 278 Conn. 333-34 (2006). (Emphasis added.)Further, the legislature is presumed to know how to use limiting terms when it chooses to do so, and to know how to draft legislation consistent with its intent. AvalonBay Communities, Inc., 280 Conn. 405.
The, court presumes that when the legislature enacted the URAA in 1971, session 2, it was aware of the lead statute, which it had enacted in the previous session in 1971, session 1. The legislature nonetheless established the URAA with provisions for broad assistance to persons displaced due to code enforcement. The URAA does not contain language limiting the agencies that would be subject to the URAA, or the authority of the DECD to order relocation assistance.
The lead statute does not limit the health director's authority to utilization of "community resources." North Central argues that, because the lead statute does not specifically direct the local health district to provide financial assistance for relocation or be subject to the URAA when ordering relocations, it is not required to do so. This argument is unpersuasive.
The court reads the URAA broadly as constituting a remedial purpose giving effect to the legislative intent to protect persons who are displaced as a result of code enforcement activities, and rejects North Central's narrow interpretation of the lead statute to foreclose displaced persons from relocation remedies under the URAA. The DECD's order pursuant to § 8-266 is sustained.
CONCLUSION
Based on the foregoing reasons, the court finds that the Commissioner of the DECD acted in accordance with the law in its order compelling North Central to pay relocation costs to the Phipps. Accordingly, the court affirms DECD's opinion and dismisses plaintiff's appeal.
THE COURT By Booth, J.
CT Page 11307