Opinion
No. CV 04 4002185 S
Memorandum Filed March 20, 2007
Constitutional Law — Equal Protection Clause — In General — Opinion Strikes an Amended Complaint Filed to Cure an Earlier Complaint Attempting to State an Equal Protection Claim Based on a "Class of One," Based on the Court's Finding that the Amended Complaint Again Fails to Allege Sufficient Facts to Establish Irrationality or a Malicious Intent by the Defendant. This opinion strikes the counts of an amended complaint attempting to state an equal protection claim based on discrimination against a "class of one." The court's order dismissing the original attempt to state such a claim was reported at 41 Conn. L. Rptr. 531. This opinion holds that the amended allegations are insufficient to cure the deficiency upon which the original complaint was based: there are insufficient facts alleged to satisfy the essential requirement that a "class of one" equal protection claim be based on either conduct that is "irrational" or "motivated by a malicious or bad faith intent to injure the plaintiff." The amended complaint remains lacking in specific facts to support the plaintiffs conclusory allegations of irrationality and malicious intent.
Before the court is the defendant's motion to strike counts two and three of the plaintiffs' complaint on the ground that the plaintiffs have failed to provide factual support for their claim of violation of the equal protection clause of the fourteenth amendment to the United States Constitution.
The plaintiffs, Louis West and Jan Rhynhart, filed a three-count complaint for negligence and equal protection violations against the defendant the New Haven Housing Authority, on September 8, 2004. The plaintiffs are residents of an apartment complex owned and operated by the defendant on Liberty Street in New Haven. In response to the defendant's request to revise, the plaintiffs filed a revised complaint on May 16, 2005. On August 4, 2005, the defendant filed a motion to strike counts two and three (the equal protection claims), which was granted by the court, Skolnick, J., on May 23, 2006 [41 Conn. L. Rptr. 531]. The court concluded that the plaintiffs did not allege facts supporting their claim that the defendant's conduct was irrational or arbitrary, nor did they allege that the defendant acted with a malicious or bad faith intent to injure them. The plaintiffs then filed an amended revised complaint pursuant to Practice Book § 10-44 on May 30, 2006, wherein they allege that the defendant, despite repeated warnings and complaints, provided less security and safety to the tenants residing in its housing project at Liberty Street than at other specified projects in New Haven. As a result, West was assaulted and injured near his residence, and Rhynhart was assaulted and robbed in her apartment. The plaintiffs claim that the disparate treatment in terms of security and safety measures at their housing project deprived them of equal protection of the laws in violation of the fourteenth amendment to the United States constitution. Subsequently, on August 17, 2006, the defendants filed a motion to strike the amended revised complaint on the ground that it did not comply with this court's memorandum of decision striking the revised complaint. On August 21, 2006, the plaintiffs filed a memorandum in opposition.
See West v. New Haven Housing Authority, Superior Court, judicial district of New Haven, Docket CV 04 4002185 (May 23, 2006, Skolnick, J.) (41 Conn. L. Rptr. 531).
The fourteenth amendment to the United States constitution provides in relevant part: "No State shall deny to any person within its jurisdiction the equal protection of the laws." The enforcement mechanism for this right is 42 U.S.C. § 1983, which provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . ."
"The purpose of a motion to strike is to contest. . . the legal sufficiency of the allegations of any complaint. . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading. . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corporation, 277 Conn. 337, 347, 890 A.2d 1269 (2006). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asy-95 The Connecticut Law Reporter Cite as 43 CONN. L. RPTR. NO. 3, 97 (May 14, 2007) have a contract to purchase this property. The application was made in July of 2004.
The complaint further alleges that on August 24th, the defendant Authority approved the plaintiffs' feasibility plan. But on November 30, 2005, the Authority "adopted an amendment to its regulations which provides no application for the extension of sanitary sewers shall be granted for the plaintiffs' property"; the effective date was January 1, 2006.
The plaintiffs further allege that the Authority acted illegally, arbitrarily and in abuse of the discretion vested in it. It is claimed:
a. this policy is inconsistent with Authority policy regarding the extension of sewers in residential R-40 zoned land:
b. the amendment was adopted without public hearings, notice to the plaintiffs that their land would be affected and without giving the plaintiffs an opportunity to be heard on the November 2004 amendment;
c. the amendment amounts to an unconstitutional taking of the plaintiffs' property without just compensation;
d. the Authority, in adopting the amendment, abdicated its responsibility under law to control the development of a sanitary sewage system "for the town."
The concluding wherefore clause in the complaint states that "the plaintiffs appeal from the decision of the (Authority) adopting said amendment and prays that the court grant such relief as is proper."
The defendant Authority has now filed a motion to dismiss arguing that the court lacks subject matter jurisdiction because there is no statutory right to appeal from a decision by the Authority to amend its regulations.
It is not questioned that the Authority had the power, pursuant to § 7-247, to pass the November 2005 amendment to its regulations; the issues raised by the appeal only go to the propriety of the action taken. But the right to take an appeal from § 7-247 actions by a water pollution control authority only applies to certain actions under that statute. Section 7-246a reads as follows:
§ 7-246a. Applications. Time for decision. Appeal (a) Whenever an application or request is made to a water pollution control authority or sewer district for (1) a determination of the adequacy of sewer capacity related to a proposed use of land, (2) approval to hook up to a sewer system at the expense of the applicant, or (3) approval of any other proposal for waste water treatment or disposal at the expense of the applicant, the water pollution control authority or sewer district shall make a decision on such application or request within sixty-five days from the date of receipt, as defined in subsection (c) of Section 8-7d, of such application or request. The applicant may consent to one or more extensions of such period, provided the total of such extensions shall not exceed sixty-five days.
(b) Notwithstanding any other provision of the general statutes, an appeal may be taken from an action of a water pollution control agency or sewer district pursuant to subsection (a) of this section in accordance with Section 8-8.
As the defendant states in its brief, the Authority's "decision to amend its regulations does not fall within any of the categories for which an appeal may be brought under General Statutes § 7-246a."
It has been the law in our State since early times that "the right of appeal exists only under statute. . . and parties have no vested right thereto. . . It is not essential to the constitutionality of the statute which authorizes an administrative board to make orders. . . that it contain a provision for an appeal in a technical sense from the board's action." Bahr Corporation v. O'Brion, 146 Conn. 237, 246 (1959). Early cases recognized this proposition Etchells v. Wainwright, 76 Conn. 534, 541 (1904); Neilson v. Perkins, 86 Conn. 425, 428 (1913).
In Long v. Zoning Commission, 133 Conn. 248, 252 (1946), the court said that: "Appeals to the courts from administrative boards or officers exist only under statutory authority, and, unless a statute provides for them, courts are without jurisdiction to entertain them." See also Rybinski v. State Employees Retirement Commission, 173 Conn. 462, 472 (1977); Danziger v. Demolition Board, 18 Conn.App. 40, 44 (1989); cf. State v. Vachon, 140 Conn. 478, 485-86 (1953); Fishman v. Stamford, 159 Conn. 116 (1970); also see Diaz v. Board of Directors, 2 Conn.App. 43, 47-48 (1984). Under such circumstances, the appeal, as here, must be dismissed. And this is so even though, as in this case, a constitutional deprivation is claimed as it was in Rocky Hill Convalescent Hospital v. Metro. Dist., 160 Conn. 446, 456 (1971) (one of the claims made in dismissed appeal was taking of property without just compensation and without due process in violation of the State and Federal constitutions).
All of this does not mean that a person subject to a non-appealable administrative ruling which is felt to be unfair, incorrect, and/or violative of constitutionally protected rights is without the redress that access to the courts can provide. As said in Bahr Corporation, 160 Conn. at page 246: "If any person claims to be harmed by such an order, his (or her) constitutional right to due process of law is protected by (the) privilege to apply to a court," see also State v. Vachon, 140 Conn. At 485. In Danziger the court said: "This means that in such a case the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions." 18 The Connecticut Law Reporter 97 Cite as 43 CONN. L. RPTR. NO. 3, 97 (May 14, 2007) lum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "[A] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The defendant moves to strike counts two and three of the amended revised complaint on the ground that the plaintiffs have not cured the deficiencies that led the court to grant the initial motion to strike. It argues that there are still no factual allegations demonstrating the lack of a rational reason for the disparate treatment, nor is there an allegation that its conduct was motivated by a malicious or bad faith intent to injure the plaintiffs. The plaintiffs counter that their failure to state the reason for the disparate treatment, if a defect at all, existed before the complaint was originally stricken and revised, and that the defendant's failure to object to it then constitutes waiver of this ground. At oral argument, the plaintiffs repeated their contention that they are not required to plead specific reasons for the disparate treatment because the defendant's conduct was irrational.
Two cases, Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), and LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), convinced this court to grant the defendant's first motion to strike. The court concluded that the plaintiffs had not sufficiently alleged that the defendant's conduct was "irrational or arbitrary" as set forth in Willowbrook v. Olech, supra, 528 U.S. 565, nor had they alleged that the defendant's conduct was motivated by a malicious or bad faith intent to injure them, as set forth in LeClair v. Saunders, supra, 627 F.2d 610. In their amended pleading, the plaintiffs have added allegations specifying the various housing projects in which the defendants supplied "more extensive and intensive policing, better lighting, better surveillance, and more secure and burglary-proof doors and windows." While this provides the factual basis for a disparity in treatment, it provides no factual basis for the argument that the defendant's conduct was arbitrary or irrational.
The plaintiffs continue to assert that they need not plead reasons for the defendant's behavior because its behavior was irrational. This argument misinterprets the court's holding that the plaintiffs must plead facts to support their contention; arguing that the disparities were "irrational" without allegations to support it does not meet the more stringent fact-pleading requirements of Connecticut civil procedure. See Practice Book § 10-1. As our Supreme Court in Kelo v. New London, 268 Conn. 1, 843 A.2d 500 (2004), noted, "[the plaintiffs] bear the burden of proving that there is no conceivable rational basis for the [disparate treatment]," id., 110, which at the very least requires that they allege an irrational basis for the disparate treatment, if not specific facts supporting such claim. Additionally, the amended revised complaint remains devoid of any allegations that the defendant acted with a bad faith or malicious intent to injure them, which might be sufficient under LeClair v. Saunders, supra, 627 F.2d 610, to establish a "class of one." Therefore, the plaintiffs have not overcome the deficiencies fatal to their revised complaint. The plaintiffs also claim that the grounds specified by the defendants were not raised in the prior motion to strike and therefore must be considered waived, citing Barasso v. Rear Still Hill Road, LLC, Superior Court, judicial district of New Haven, Docket No. CV 98 0417927 (October 18, 2001, Jones, J.) [30 Conn. L. Rptr. 546], in support. This argument is without merit. The ground for the defendant's motion is that the plaintiffs have not properly amended counts two and three of their complaint as required by this court's decision of May 23, 2006. Therefore, defendant's motion to strike counts two and three of the plaintiff's revised complaint is granted.
In this regard, the court also reiterates that, with respect to the plaintiffs' obligation to show that they were treated differently than others similarly situated, in "a `class of one' claim, the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005). The plaintiffs have not alleged any facts suggesting that the housing projects listed were substantially similar to their own, only that they were also run by the defendant and located in New Haven. Variation in location or statistical crime rates, for example, are factors that a "rational person could regard as. . . justify[ing] the differential treatment on the basis of a legitimate government policy . . ." Id., 105.
The Barasso case, in any event, is inapposite, as it stands only for the proposition that a party whose motion to strike has been denied cannot then file a "revised motion to strike." In the present case, the defendant's motion to strike was granted and the plaintiff repleaded pursuant to Practice Book § 10-44. "[A] defendant who claims that an amendment to a complaint which replaces a complaint that previously was struck for legal insufficiency is essentially the same. . . [may] move to strike it. If the amended complaint merely reiterated claims previously disposed of by the trial court, the motion to strike the second amended complaint [is] properly sustained." (Internal quotation marks omitted.) Parker v. Ginsburg Development CT LLC, 85 Conn.App. 777, 781, 859 A.2d 46 (2004).