Opinion
No. LLI CV 08 5003980S
December 21, 2009
MEMORANDUM OF DECISION Re Motion to Strike Counterclaim, #119
I FACTS
On April 29, 2008, the plaintiffs, Washington Inland Wetlands and Conservation Commission (the commission) and its enforcement officer, Michael Ajello, initiated this action by way of a one-count complaint against the defendants, Robert Brown and Angie Brown. The complaint, which was filed on May 2, 2008, alleges, inter alia, that: (1) the defendants are owners of a parcel of land at 127 West Shore Road in Washington Depot, Connecticut (the property), which has one hundred and fifty-five feet of frontage on Lake Waramaug (the lake); (2) on April 26, 2006, the defendants applied for a permit to renovate portions of an existing lake retaining wall on the property and create stone steps leading up to the lake; (3) on May 10, 2006, the Commission voted to permit the defendants to renovate only two sections of stone walls to anchor two proposed docks and create a ten-foot section encompassing up to four stone stairs leading to the lake; (4) prior to the Commission's issuance of a permit, the defendants, without providing any notice to the plaintiffs, modified over one hundred feet more of the lake shoreline than permitted by the latter, and created stone walls with back-filling; (5) on May 18, 2007, upon discovering these renovations, Ajello issued a first notice of violation to the defendants; (6) in response to the enforcement order, the defendants submitted to the plaintiffs an untimely request to revise the terms of the permit seeking to legitimize their already-completed renovations; (7) said request was denied by the Commission on August 29, 2007; and (8) although a portion of the unauthorized wall has since been removed, the defendants have yet to fully restore the property to its pre-renovation condition, or at least to a condition allowed by the permit.
On March 10, 2009, the defendants filed their revised answer to the complaint, along with their special defenses and a counterclaim alleging a violation of their due process rights under both the United States and Connecticut constitutions. Specifically, the counterclaim alleges that the defendants had an absolute right to conduct the renovations to the lake retaining wall under General Statutes § 22a-40, and that the plaintiffs deprived them of their due process rights when they failed to issue the permit for such work to be completed or declare that obtaining a permit for this type of work was unnecessary in the first place.
Subsequently, on May 21, 2009, the plaintiffs filed the instant motion to strike the defendants' counterclaim. The defendants filed their memorandum in opposition on July 1, 2009. The plaintiffs filed a responsive memorandum on July 13, 2009. Argument was heard before this court at short calendar on November 9, 2009
II DISCUSSION
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
In adjudicating a motion to strike, the court must "construe the [counterclaim] complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]t does not [however] admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In the present case, the dispositive issue is whether, when construing the counterclaim in the light most favorable to the defendants, it states a legally viable cause of action for a violation of due process under either the United States Constitution or the Constitution of the State of Connecticut, respectively. The plaintiffs argue that the motion should be granted because it fails to allege a constitutionally cognizable property interest and is not based upon conscience shocking conduct by the plaintiffs, both of which are necessary elements in making out a prima facie substantive due process claim.
The defendants counter, arguing that the motion should be denied because they had a clear entitlement to the approval of their application for the permit and that the plaintiffs had no discretion to deny said application; therefore, they argue, they did indeed possess a constitutionally cognizable property interest. Further, the defendants contend that resolving the conscience shocking element is highly fact-sensitive and should be decided by the court on a case-by-case basis after considering all of the circumstances in a given matter. Accordingly, they argue that a motion to strike is the improper vehicle for purposes of determining whether the allegations in their complaint satisfy the requirements of this prong. The court addresses each issue in order.
A. Cognizable Property Interest
At the onset, it should be noted that "[t]he due process provisions of the state and federal constitutions generally have the same meaning and impose similar constitutional limitations." Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). Therefore, the court will proceed in its analysis regarding them as legally equivalent for purposes of the instant motion to strike.
Additionally, the defendants' claim that their due process rights were violated insofar as they had to even apply for a permit must fail because these statutory "as of right" permissions are not self-effectuating and may not be merely claimed as such by an individual. See Wilkinson v. Inland Wetlands Watercourses Commission, 24 Conn.App. 163, 167-68, 586 A.2d 631 (1991). Requiring landowners to apply for a permit is neither futile nor inadequate. Moreover, the Commission has a scheme set in place to determine whether an activity is exempt from regulation "as of right." See Washington Inland Wetlands Conservation Commission, Reg. § 4.04. Nevertheless, the court proceeds in its analysis of the legal sufficiency of the defendants' counterclaim insofar as it alleges that the plaintiffs wrongfully refused to issue to the former a permit to renovate their retaining wall.
In adjudicating substantive due process claims in land use cases, Connecticut courts employ the entitlement analysis as developed in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and adopted by the Second Circuit in Yale Auto Parts, Inc. v. Johnson, 593 F.Sup. 329 (D.Conn. 1984), aff'd, 758 F.2d 54 (2d Cir. 1985), and the Connecticut Supreme Court in Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739-40, 610 A.2d 1238 (1992). "Under this analysis, in order to have a protected property right, the applicant must have a `clear entitlement' to the approval he was seeking from the land use regulating body." (Internal quotation marks omitted.) Carr v. Bridgewater, 224 Conn. 44, 51, 616 A.2d 257 (1992). A plaintiff has "a clear entitlement to a permit when, absent the alleged denial of due process, there is either a certainty, or a very strong likelihood that the application would have been granted." Id.
"Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case . . . Yale Auto Parts rejected the claim of a property interest in the permit being sought because of the discretion of the local regulating body. Even if, in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest. The strong likelihood aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised." (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, supra, 222 Conn. 739-40. "[B]ecause the focus of the inquiry is on the degree of discretion of the authority, the question of whether an applicant has a property interest is normally a matter of law for the trial court." (Internal quotation marks omitted.) Carr v. Bridgewater, supra, 224 Conn. 54.
In the present case, the defendants argue that General Statutes § 22a-40 gave them an absolute right to conduct the aforedescribed renovations without undue regulation and interference by the plaintiffs. Section 22a-40 provides in relevant part: "(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (4) Uses incidental to the enjoyment and maintenance of residential property, such property defined as equal to or smaller than the largest minimum residential lot site permitted anywhere in the municipality, provided in any town, where there are no zoning regulations establishing minimum residential lot sites, the largest minimum lot site shall be two acres. Such incidental uses shall include maintenance of existing structures and landscaping but shall not include removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse." (Emphasis added.)
Based on the plain language of the statute, the plaintiffs may not have had any discretion to deny the defendants' application for a permit to perform renovations to the lake retaining wall because when construing the facts in the light most favorable to the defendants, it could have constituted an existing structure on the property exempt from regulation per § 22a-40(a)(4). Therefore, it would be inappropriate to grant the motion to strike on the basis that the defendants did not possess a cognizable property interest.
B. Conscience Shocking Conduct
Nevertheless, in order to sustain a legally cognizable cause of action for deprivation of substantive due process, the counterclaim must also allege some form of "conscience shocking" behavior by the government. "Substantive due process is the embodiment of society's desire to prevent government from abusing [its] power, or employing it as an instrument of oppression . . . To that end, a claim of a violation of substantive due process must allege a level of executive abuse of power . . . which shocks the conscience . . . A salient example of such abuse of power may be found in the very case in which the standard was first enunciated. In Rochin v. California, [ 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)], the United States Supreme Court held that the forced pumping of a suspect's stomach to retrieve evidence `shocked the conscience.' As the court described it, `[i]llegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation . . .'" (Citations omitted; internal quotation marks omitted.) ATC Partnership v. Windham, 251 Conn. 597, 608, 741 A.2d 305 (1999).
"Despite the important role of substantive due process in securing our fundamental liberties, that guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm . . . Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm that our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society . . . Thus, substantive due process has been held to safeguard such intimate activities as marriage; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); contraception; Griswold v. Connecticut, 381 U.S. 479, 481-82, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); education of children; Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); and bodily integrity. Rochin v. Caifornia, [ supra, 342 U.S. 171-72.]" (Citations omitted; internal quotation marks omitted.) CT Page 1575 ATC Partnership v. Windham, supra, 251 Conn. 606.
"The court's . . . decision in County of Sacramento v. Lewis, [ 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043], further illustrates the extremity of government abuse that must be alleged in order to sustain a substantive due process claim. In that case, reckless indifference by a police officer during a high-speed chase resulted in the death of the appellees' decedent. In sustaining the trial court's grant of summary judgment in favor of the county of Sacramento, the United States Supreme Court held that `[r]egardless [of] whether [the police officer's] behavior offended the reasonableness held up by tort law or the balance struck in law enforcement's own codes of sound practice, it does not shock the conscience, and petitioners are not called upon to answer for it under [a substantive due process claim].'" ATC Partnership v. Windham, supra, 251 Conn. 608.
In the present case, the defendants argue that the plaintiffs' denial of their permit application, issuance of enforcement orders and commencement of the instant underlying litigation constitute conscience shocking behavior by the latter. Furthermore, they argue that a motion to strike would be the inappropriate vehicle by which to dispose of their counterclaim for failure to satisfy this prong. After a careful review of the relevant legal authorities and the defendants' counterclaim, the court respectfully disagrees.
As our Supreme Court so eloquently stated in ATC Partnership v. Windham, supra, 251 Conn. 609, "[t]he actions of the defendants as alleged in this case are . . . a far cry from the stomach pumping of Rochin, or the attempted regulation of personal decisions regarding marriage or contraception of Loving and Griswold. Similarly, the . . . allegations do not resemble the type of oppressive governmental conduct that resulted in a death in the County of Sacramento case, and yet was held by the United States Supreme Court not to be actionable as a violation of substantive due process." Rather, the harms alleged in this case are economic in nature and fail to rise to the conscience shocking level that the United States Supreme Court has set as the standard for violations of substantive due process. Accordingly, the motion to strike is granted.
III CONCLUSION
Based on all the foregoing reasons, the plaintiffs' motion to strike the defendants' counterclaim is granted.