Opinion
No. CV 04 0104038S
November 3, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE OF M.R.ROMING ASSOCIATES, P.C.
The defendant, M.R. Roming Associates, P.C. ("Roming"), has moved to strike Counts Three, Seven and Eleven of the Third Revised Complaint date June 15, 2005 (the "Complaint") on the grounds that those counts fail to state cognizable causes of action.
This action arises from a project that involved the renovation and construction of athletic fields on property that is owned by the board of education for regional school district seventeen. According to the plaintiff, Edward Shukis, Roming caused damage to his property which includes protected wetlands. The plaintiff also named the board of education and SIDECO Construction Company (SIDECO) as codefendants.
In Counts Three, Seven and Eleven of the Complaint the plaintiff alleges that Roming violated the Connecticut Environmental Protection Act of 1971 (CEPA), and that its conduct constituted public and private nuisance, respectively.
Connecticut General Statutes §§ 22a-14 to 22a-20.
Roming also seeks to strike paragraphs one, two, three and five of the plaintiff's prayer for relief as they relate to him on counts three, seven and eleven.
Count Three alleges the following facts. "The defendant M.R.Roming Associates, P.C., is, and was, at all times relevant to this action, a landscape architecture and land planning business, with a principal place of business located at 224 Whiting Lane, West Hartford, Connecticut, hired by the HK BOE as the project architect for the construction of Athletic Fields." It further alleges that Roming was responsible for monitoring, oversight and remedial action regarding siltation and runoff. According to the plaintiff, Roming designed and planned the removal of the existing field surfaces in preparation for the renovation while SIDECO, a construction company and codefendant, performed the physical work. As a result of this project, large quantities of storm water runoff containing soil, rocks and other debris flowed from the property into plaintiff's pond and surrounding wetlands thereby causing unreasonable pollution, impairment of, and injury to the public's trust in the wetlands and natural resources of the state in violation of the Connecticut Environmental Protection Act (CEPA), Connecticut General Statutes §§ 22a-14 through 22a-20. The plaintiff adds that Roming is responsible for oversight, planning and design of the project and that the damage is ongoing.
Roming argues that the court should strike this count because the plaintiff does not allege that Roming owns or controls the offending property or, in the alternative, the plaintiff has only alleged that Roming engaged in acts of omission which the court is powerless to enjoin under the CEPA.
Under General Statutes § 22a-16, "[a]ny person . . . may maintain an action in the superior court . . . for declaratory and equitable relief against . . . any person, partnership [or] corporation . . . acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." As the Supreme Court has explained, "[s]ection 22a-17 expressly provides that the conduct of the defendant may be considered acting alone, or in combination with others. This recognizes the Fact that a person may be polluting the environment but that his pollution alone may not be unreasonable. But when his pollution is introduced into the environment in combination with others, it may become unreasonable." Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 59-60, 441 A.2d 68 (1981), overruled in part on other grounds, 260 Conn. 506, 556, 800 A.2d 1102 (2002).
Contrary to the argument of Roming, neither the language of the statute nor cases interpreting it require ownership or control as a prerequisite to liability under CEPA.
Roming next asserts that the court should strike the CEPA count because the plaintiff fails to seek an injunction directed to some affirmative act. In one decision, a judge of the Superior Court has concluded that "a fair reading of the statute [Connecticut Environmental Protection Act] does not support the conclusion that . . . claims of omissions are amenable to remedy under it." East Haven v. North Branford, Superior Court, judicial district of New Haven, Docket No. CV 00 438153 (September 11, 2003, Robinson-Thomas, J.). The East Haven decision notwithstanding, it is not clear that CEPA liability requires an affirmative act as opposed to a failure to act. However, the Complaint alleges that the pollution of the plaintiff's property was caused in part by Roming's design of the athletic field reconfiguration. If the allegation of an affirmative act is required under CEPA, it has been alleged in the Complaint. Therefore, the motion to strike Count Three of the Complaint is denied.
In Count Seven, the plaintiff alleges that Roming's conduct, as detailed in Count Three, constitutes a public nuisance in that it interferes with the right of the public to the protection and enjoyment of Connecticut wetlands. Roming seeks to strike this count on the basis that the plaintiff fails to plead that Roming controls or possesses the property that has created the nuisance, which, it asserts, is a necessary component of the use of the land element of nuisance under Connecticut law.
"[I]n order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages . . . [W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public . . . and (2) that the alleged nuisance was absolute, that is, that the defendant's intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance . . .
"Our case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful user of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance . . . property ownership is not a prerequisite to nuisance liability . . .
"In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant uses property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance . . .
"For example, a landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether the portion of the property on which the condition exists is in the landlord's control or the tenant's . . . Similarly, when circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183-84, 527 A.2d. 688 (1987).
"Other jurisdictions have explicitly recognized control, as an essential predicate to nuisance liability. Liability for damage caused by [a nuisance] turns upon whether the defendant was in control, either through ownership or otherwise." (Citations omitted; internal quotation marks omitted.) Id., 185.
Applying the user test to the facts before it in Tippetts, in which the plaintiff alleged a claim of public nuisance, the Court noted that nothing in the record suggested that the defendant, who served as designer and construction supervisor of a bridge that collapsed, had sufficient control of that project to make it liable in public nuisance. Rather, the Court determined that the project sponsor and property owner, the plaintiff, the state of Connecticut, had retained control of the property thereby insulating the defendant from liability for public nuisance. As the Court explained "[i]t is undisputed that at all times relevant to these appeals, the bridge, and the highway right of way in which the bridge was included, was exclusively the property of the plaintiff. While . . . ownership is not essential to nuisance liability, nothing in the evidence suggests that the plaintiff ever relinquished its authority over the bridge to the defendants." Id., 185-86.
In this case, the plaintiff alleges that Roming is the architect for the athletic fields construction project and is responsible for monitoring, oversight and remedial action regarding siltation and runoff. As in Tippetts, Roming provided the architectural and engineering work for a construction project that was ultimately under the control of the property owner.
Although the plaintiff alleges that Roming directed changes that were made to portions of the property, he does not allege that Roming had ultimate control of, or assumed the type of authority over the property that would permit it to be held liable for public nuisance. The motion to strike Count Seven is granted.
The plaintiff alleges in Count Eleven that Roming's conduct constitutes a private nuisance in that it interferes with the plaintiff's use and enjoyment of his property. Roming seeks to strike this count because the plaintiff fails to plead that Roming controls or possesses the property that allegedly created the nuisance. Roming asserts that control or possession is a necessary component of the use of land element of private nuisance under Connecticut law.
Private nuisance is a separate and distinct tort from public nuisance. Although both torts, sound in the interference with the use and enjoyment of another's land, these causes of action have different requisite elements. "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety . . . Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 496 (2002).
While Tippetts involved a public nuisance, many cases it relied on concerning the necessity of the defendant's control of the property were private nuisance cases. See Bentley v. Dynarski, 150 Conn. 147, 151-52, 186 A.2d 791 (1962); Henriques v. Rockefeller, 148 Conn. 654, 658-59,173 A.2d 596 (1961). As in a case of public nuisance, the plaintiff in a private nuisance case must also allege and prove that the defendant had control of the property in question. There is no such allegation with respect to Roming. The motion to strike Count Eleven is, therefore, granted.