Connecticut Cases June 28, 2019: Town of Woodbury Historical District Commission v. Arras

Case Description

UNPUBLISHED OPINION

Shaban, J.

PROCEDURAL HISTORY & FACTS

The plaintiffs, the Woodbury Historic District Commission (commission) and Abby Conroy, acting as the Woodbury Historic District Enforcement Officer (enforcement officer), filed their complaint on November 29, 2016, and subsequently filed a two-count Amended Complaint (#149) on February 5, 2019, which is the operative complaint. Therein, the plaintiffs allege that the defendant, Thomas Arras, violated General Statutes § 7-147d and the Woodbury Historic District Regulations by erecting an exterior sign on his premises without first filing an application for, and obtaining, a certificate of appropriateness from the commission, which is the subject of Count One. In Count Two, the plaintiffs allege that the defendant was issued a cease-and-desist letter by the enforcement officer notifying him of his potential violation of § 7-147d and the Woodbury Historic District Regulations as well as the need to file an application for a certificate of appropriateness, but the defendant failed to file an application for the requisite certificate and still maintains the sign on his property. The plaintiffs seek an injunction requiring the defendant to remove the sign and enjoin him from installing additional signs without first obtaining a certificate of appropriateness. The plaintiffs also seek civil penalties and fines.

On October 29, 2018, the defendant filed an answer, special defenses and counterclaims (#136). The seven special defenses are as follows: (1) the complaint is barred by Article VI and the First and Fourteenth Amendments to the United States Constitution and Article First, § § 4 and 5 of the Connecticut Constitution because the licensing scheme for applying for certificates of appropriateness constitutes content based regulation of speech; (2) the plaintiff’s request for an injunction is a prior restraint on speech, which violates Article VI and the First and Fourteenth Amendments to the United States Constitution and Article First, § § 4 and 5 of the Connecticut Constitution; (3) both counts of the operative complaint fail to state a claim upon which relief may be granted; (4) the court lacks subject matter jurisdiction over the claims in the plaintiffs’ complaint; (5) the complaint is void for vagueness; (6) any equitable relief is barred by the doctrine of unclean hands; and (7) the plaintiffs failed to mitigate any damages that may exist due to their refusal to sufficiently and precisely allege true facts in their complaint and their refusal to respond to the defendant when he sought answers as to how to remain in compliance with the applicable statutes and regulations.

The defendant also asserts three counterclaims, which include allegations that: (1) the defendant’s constitutional rights under Article VI and the First, Fifth and Fourteenth Amendments to the United States Constitution were, pursuant to 42 U.S.C. § § 1983, 1985, 1986 and 1988, violated by the plaintiffs’ actions; (2) the defendant’s rights under Article First, § § 1, 4, 5, 10 and 20 of the Connecticut Constitution and General Statutes § § 7-147d, 7-147f, 7-147h, the Town of Woodbury’s Charter and the Woodbury Historical District Regulations were violated; and (3) he is "pleading in the alternative" by incorporating all allegations of both of the first two counterclaims.

The defendant alleges the following relevant facts, which underlie all three counterclaims. On or about October 2015, the defendant erected a four-foot by eight-foot sign on his property, containing the political message: "Butterly, Utterly, Utterly Disappointing." This was prior to the November 3, 2015 local election, which included an election for the First Selectman of Woodbury, in which William Butterly was a candidate. On or about May 12, 2016, the enforcement officer requested that the defendant apply to the commission for a certificate of appropriateness for the erected sign. On May 16, 2016, the defendant met with the Woodbury town planner to apply for a certificate of appropriateness but was not provided any applications. On June 8, 2016, the enforcement officer issued the defendant a cease-and-desist order regarding the erected sign. On June 11, 2016, the defendant called the town planner asking if his sign would be in compliance with the applicable regulations if it was no longer affixed to the ground, but the defendant was not given a response. On July 25, 2016, the defendant changed the sign by removing any attachment to the ground in an effort to comply with the commission’s regulations. On July 29, 2016, the defendant met with members of the Woodbury land use office to determine whether his sign was now in compliance with the commission’s regulations, but was not given an answer. On September 1, 2016, the defendant removed the sign from his property. Despite its removal, almost three months later on November 29, 2016, the plaintiffs filed the present action.

On December 13, 2018, the plaintiffs filed a motion to strike (#139) all seven of the defendant’s special defenses as well as his three counterclaims. On January 22, 2019, the defendant filed an objection which was withdrawn in part (#147, #151). He then filed a revised objection on February 11, 2019 (#150). The court heard oral argument on the plaintiffs’ motion on March 4, 2019.

COUNTERCLAIMS

As to the three counterclaims, the plaintiffs move to strike them on the ground that the defendant failed to exhaust his administrative remedies by failing to appeal the cease-and-desist order that the enforcement officer issued on June 8, 2016. The defendant objects, arguing that General Statutes § 7-147i does not contain any language precluding other remedies and, in any event, there was no need for him to file an appeal as he was not aggrieved by the cease and desist order because he complied with it when he removed the sign.

Because the exhaustion of administrative remedies doctrine implicates subject matter jurisdiction, the court will treat the present motion to strike as a motion to dismiss with respect to the three counterclaims. Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012); Lane v. Cashman, 179 Conn.App. 394, 422-23, 180 A.3d 13 (2018). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Keller v. Beckenstein, supra . "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in [its] favor ... clearly to allege facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015). A trial court may treat a motion to strike as a motion to dismiss if a jurisdictional issue is raised therein. See, e.g., Lane v. Cashman, supra (motion to dismiss/strike that raises exhaustion of administrative remedies doctrine is properly treated as motion to dismiss). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). In paragraph 15 of his counterclaims, the defendant alleges that: "On June 8, 2016, the Plaintiffs issued a Cease and Desist Order regarding the Defendant’s political sign containing the message, ‘Butterly, Utterly, Utterly Disappointing, ’ which stated, in part, ‘As a result of inspections of your property it has been determined that the following violation exists and must be remedied: A non-temporary sign has been erected on the subject property located within Historic District Number 1 without a Certificate of Appropriateness from the Woodbury Historic District Commission, in violation of section 5.1 of the Historic District Regulations.’ The defendant took no appeal of the cease-and-desist order to the Superior Court, which he could have done pursuant to § 7-147i. That statute provides in relevant part: "Any person or persons severally or jointly aggrieved by any decision of the historic district commission or of any officer thereof may, within fifteen days from the date when such decision was rendered, take an appeal to the superior court for the judicial district in which such municipality is located ... Procedure upon such appeal shall be the same as that defined in section 8-8." Applying § 7-147i to the case now before the court, it is clear that the defendant could have appealed a decision of a historic district commission or any officer thereof directly to the Superior Court.

"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 ... We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate ... or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).

General Statutes § 7-147h provides in relevant part that: "(a) If any ... action taken or ruling made by the historic district commission pursuant to ... any regulation or ordinance adopted under [these] sections has been violated, the commission may, in addition to other remedies, institute an action in the superior court ... which court shall have jurisdiction to restrain such violation and to issue orders directing that the violation be corrected or removed ... Regulations and orders of the commission issued pursuant to said sections, or to any regulation or ordinance adopted under said sections, shall be enforced by the zoning enforcement official or building inspector or by such other person as may be designated by ordinance, who may be authorized to inspect and examine any building, structure, place or premises and to require in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations or orders made under the authority of said sections or of any regulation or ordinance adopted under said sections."

Although the defendant failed to appeal the cease-and-desist order, the court notes that § 7-147h expressly provides a historic district commission with two remedies for purported violations of the Historical District Commission Act (the Act), General Statutes § § 7-147a through 7-147k, and for regulations promulgated pursuant thereto. These consist of: (1) the issuance of a written cease-and-desist order to a purported violator requiring him or her to remedy a violation the historic district commission, acting through the enforcement officer, deems to have occurred; and (2) an action for an injunction to enjoin ongoing violations of the Act or a historic district commission’s regulations. These two remedies are independent of one another because § 7-147h explicitly permits a commission to institute an injunctive action "in addition to other remedies." Further, it is important to note that for an injunctive action, the historic district commission itself, as an entity, institutes the action. A cease-and-desist order, however, is explicitly issued by "the zoning enforcement official or building inspector or by such other person as may be designated by ordinance, who may be authorized to inspect or examine any building, structure, place or premises ..." § 7-147h. This is important because each remedy is an independent method by which the purported violation can be sought to be curbed. In other words, regardless of what the purported violator does relative to an issued cease-and-desist order, a historic district commission may still bring an injunctive action independent of a zoning enforcement officer’s issuance of such an order. Moreover, there appears to be no requirement that a historic district commission first issue a cease-and-desist order prior to instituting an action in the Superior Court to enjoin a violation of the Act or the commission’s regulations. See § 7-147h. Thus, the failure to appeal a cease-and-desist order does not preclude a defendant from raising counterclaims to an injunctive action filed by a historic district commission to enjoin purported violations of the Act or the commission’s own regulations. The plaintiffs’ motion to dismiss the first, second and third counterclaims is denied and the defendant’s objection thereto is sustained.

FIRST AND SECOND SPECIAL DEFENSES

As to the first and second special defenses, the parties rely on the same arguments that were advanced relative to the three counterclaims. Practice Book § 10-39 provides in relevant part: "(a) A motion to strike shall be used whenever any party wishes to contest ... (5) the legal sufficiency of any answer to any complaint, counterclaim ... or any part of that answer including any special defense contained therein." Failure to exhaust one’s administrative remedies implicates subject matter jurisdiction. Levine v. Sterling, supra , 300 Conn. 528. "[T]he proper procedure for attacking a special defense used as a bar to an action is either a motion to strike or a motion for summary judgment, even though, in the past, special defenses have been challenged by a motion to dismiss where no objection has been taken to that procedure ... [T]he issues raised by [a] special [defense] are not jurisdictional in nature but rather issues of law for this court to decide." Sprague v. Dotolo, Superior Court, judicial district of New London, Docket No. CV-10-6002895 (December 1, 2010, Devine, J.); see also Lane v. Cashman, supra , 179 Conn.App. 422-23 (in reviewing grant of motion to dismiss/strike a special defense and counterclaim for failure to exhaust administrative remedies in action seeking injunction enjoinment of zoning violations, Appellate Court noted that exhaustion of administrative remedies doctrine implicates subject matter jurisdiction and treated, in dicta, the motion to dismiss/strike as motion to dismiss).

"When a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not contest the validity of the order if zoning officials seek its enforcement in the trial court after the alleged violator has failed to appeal." Masayda v. Pedroncelli, 43 Conn.App. 443, 447, 683 A.2d 23 (1996); Farmington-Girard, LLC v. Planning & Zoning Commission, judicial district of Hartford, Land Use Litigation Docket, Docket Nos. CV-15-6057526-S, CV-15-6059162-S, CV-14-6055443-S, CV-15-6056247-S, 2017 WL 6888851, at *9 (September 11, 2017, Berger, J.). In Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 2, 544 A.2d 152 (1988), our Supreme Court held that a defendant need not exhaust its administrative remedies when arguing that a plaintiff, which is seeking injunctive relief against the defendant for zoning violations, attacks the facial validity of an ordinance authorizing the defendant to act in that manner because "appealing the validity of an ordinance to the body charged with enforcing the ordinance is a futile act" as "local administrative bodies lack the competency to adjudicate the facial validity of an ordinance." Id., 5-6.

Because the issue of exhaustion of administrative remedies is jurisdictional, the court must, once again, treat the present motion as a motion to dismiss, this time as to the first and second special defenses. Keller v. Beckenstein, supra , 305 Conn. 531-32; Lane v. Cashman, supra , 422-23. As to the first special defense, because the plaintiffs’ action was brought seeking injunctive relief pursuant to § 7-147h, it was not necessary for the defendant to have first sought an appeal from the cease-and-desist in order to challenge the plaintiffs’ claim that he violated § 7-147d.

As to the second special defense, however, the defendant specifically attacks the plaintiffs request for an injunction, arguing that the grant of an injunction would presumptively be unconstitutional as a prior restraint on speech. In paragraph 1 of their prayer for relief, the plaintiff’s request, in relevant part: "[a] temporary and permanent injunction compelling the Defendant to comply with State Statute and the Town of Woodbury Zoning Regulations at issue and the terms of the Cease and Desist Order ..." (Emphasis added.) To the extent that the defendant raises the second special defense as to the cease-and-desist order, it is an impermissible attack on the validity of an order of a zoning enforcement officer that could have been appealed. Masayda v. Pedroncelli, supra , 43 Conn.App. 447. Appealing the cease-and-desist order would not have been a futile act because the appeal would have been to the Superior Court and not a local administrative body, which would have lacked the competency to adjudicate its validity. § 7-147i; Norwich v. Norwalk Wilbert Vault Co., supra , 208 Conn. 2. As such, the plaintiff was required to exhaust his administrative remedies and appeal the cease-and-desist order prior to raising his second special defense to Count Two.

Even if the court were to treat the present motion as a motion to strike, the ground relied upon by the plaintiffs to strike the first and second special defenses would not result in the striking of the first special defense as to either count or the striking of the second special defense as to count one. This is because the ground relied upon does not attack either defense’s legal sufficiency, which is the sole purpose of a motion to strike. Practice Book § 10-39. Exhaustion of administrative remedies, however, is jurisdictional. Levine v. Sterling, supra , 300 Conn. 528. There is nothing jurisdictional about a special defense. Lane v. Cashman, supra ; Sprague v. Dotolo, Superior Court, supra , Docket No. CV-10-6002895.

Accordingly, whether the present motion is treated as a motion to dismiss or as a motion to strike, the motion is denied as to the first special defense, which alleges state and federal constitutional violations. Treating the present motion as a motion to dismiss with respect to the second special defense, which alleges the same violations, it is denied as to Count One and granted as to Count Two.

THIRD THROUGH SEVENTH SPECIAL DEFENSES

As to the third through seventh special defenses, the plaintiffs have moved to strike them stating "that they are legally insufficient on the grounds that they are not legally recognized special defenses and/or they do not meet the requirement of an affirmative defense." The defendant objects, arguing that the plaintiffs’ motion fails to comply with Practice Book § 10-41 for its failure to separately and specifically set forth in the body of the motion the reason for each claimed insufficiency.

"Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ... Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ... and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Citations omitted; internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). The fact that reasons for the motion "were provided in the accompanying memorandum of law does not save the motion from being considered fatally defective." (Internal quotation marks omitted.) Id., 862.

To begin, the defendant’s reference to Practice Book § 10-41 is misplaced as that section was repealed effective January 1, 2014. In his argument before this court and in his memorandum of law, the defendant has repeatedly insisted that the court should reject the plaintiffs’ motion for their failure to strictly comply with the requirements of the Practice Book to specify the basis of the claimed insufficiencies. However, the defendant’s adamant insistence that the court find the plaintiffs in non-compliance with the Practice Book is juxtaposed against his own failure to comply with the Practice Book by citing a provision that is no longer of any effect. The proper reference for the standard necessary to bring a motion to strike is set forth in Practice Book § 10-39(b), which took effect on January 1, 2014. In an effort to avoid elevating form over substance, the court will nonetheless address the merits of the objection as the provisions of § 10-39(b) are substantively similar to that of § 10-41 prior to its repeal.

The court finds that the language of plaintiffs’ motion is sufficient to overrule the defendant’s objection that it fails to specify within the body of the motion itself the bases of the motion. While the motion states that the third through seventh special defenses "are legally insufficient" it also supplements this language by adding that "they are not legally recognized defenses and/or they do not meet the requirement of an affirmative defense." This language is sufficiently specific to meet the requirements of Practice Book § 10-39(b). As to the specific objections raised by the defendant in the alternative, the court addresses them as follows.

In his third special defense, the defendant alleges that the plaintiffs’ action brought seeking to have him remove the sign he placed on his property is legally insufficient because it fails to state a claim upon which relief may be granted by virtue of the fact that the sign was removed prior to the action being brought. In their complaint, the plaintiffs allege that the sign is still up. The defendant alleges in his counterclaims, and contends in his objection, that it was taken down. He disputes the facts alleged and, in essence, claims that the plaintiffs cannot prove their case. Such a defense can be addressed with a general denial and not with a special defense. Moreover, even assuming that the sign was down as the defendant contends, the plaintiffs also seek civil fines, penalties, attorneys fees and other relief from the alleged actions of the defendant. The basis of those claims would be unaffected by the date upon which the sign was taken down. The motion to strike the third special defense is granted and the objection is overruled.

In his fourth special defense, the defendant claims the court has no subject matter jurisdiction over the plaintiffs’ claims. As noted above, the defendant claims the sign that is in issue in the plaintiffs’ complaint was taken down before the filing of the plaintiffs’ complaint. The defendant contends under those circumstances the action is moot as there is no relief that can be granted to the plaintiffs and therefore the court lacks subject matter jurisdiction over it. As with the third special defense, such factual dispute can be raised by a general denial. However, because it has been raised as an issue, the court must address the subject matter jurisdiction claim. Typically such a claim is raised by a motion to dismiss, which, in fact, the defendant has already done. See Def.’s Mot. To Dismiss (#105). The court denied the defendant’s motion to dismiss and that ruling is therefore the law of the case. See Orders (#105.10) and (#105.20). "The law of the case [doctrine] ... expresses the practice of judges generally to refuse to reopen what has been decided ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case ..." Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993). The motion to strike the fourth special defense is granted and the objection is overruled.

In his fifth special defense, the defendant contends that the plaintiffs’ complaint is "void for vagueness." More specifically, he alleges that the complaint "fails to adequately identify any other sign that is in violation" and that the plaintiffs "[have] not adequately apprised the Defendant of the nature and factual basis of the claim." On page 11 of his memorandum of law (#150), the defendant summarizes his defense by stating: "[w]hat we have in this case, however, is an improperly pleaded fact-deficient complaint." The plaintiffs move to strike the vagueness defense on the ground that it is not a legally recognized special defense. Based on the language of his special defense, the defendant’s proper remedy would have been to file a request to revise under Practice Book § 10-35, which provides in relevant part: "[w]henever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, ... the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading." No request to revise the plaintiffs’ complaint has been filed. Having filed an answer and special defense, the defendant has waived his right to seek such a revision. Practice Book § § 10-6, 10-7. The motion to strike the fifth special defense is granted and the objection is overruled.

In his sixth special defense, the defendant contends that the plaintiffs have acted with unclean hands in that they "intentionally misrepresented facts to the court and made untrue allegations when they filed their Complaint knowing that the[re] was no sign in violation of the Cease and Desist Order on the Defendant’s property at the time of the filing of the Complaint." The plaintiffs have moved to strike this special defense claiming it is not a proper affirmative defense as it does not allege facts consistent with the complaint yet show that the plaintiffs have no cause of action. The plaintiffs contend that this defense simply challenges the allegations of the operative complaint. "It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands ... The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ... It is applied not by way of punishment but on considerations that make for the advancement of right and justice ... The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ... Unless the plaintiff’s conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Citations omitted; internal quotations omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). Here, the defendant has alleged intentional misrepresentation of facts by the plaintiffs. Intentional misrepresentation falls within the fundamental principle of unclean hands, which renders this special defense legally sufficient. The motion to strike the sixth special defense is denied and the objection is sustained.

As to his seventh special defense, the defendant alleges that "[t]o the extent that any claims for damages exist, the Plaintiffs failed to mitigate any such damages due to their refusal to sufficiently and precisely allege true facts in the complaint." The plaintiffs move to strike this defense on the ground that is not a recognized special defense. The defendant has failed to cite any case law or Practice Book provision that specifically allows mitigation of damages as a special defense in an action seeking injunctive relief and the imposition of fines and civil penalties. The motion to strike the seventh special defense is granted and the objection is overruled.

CONCLUSION

With respect to the first, second and third counterclaims, treating the motion to strike as a motion to dismiss, the motion is denied. With respect to the first special defense, treating the motion to strike as a motion to dismiss, the motion is denied. With respect to the second special defense, treating the motion as a motion to dismiss, the motion is denied as to Count One, but is granted as to Count Two. With respect to the third, fourth, fifth and seventh special defenses, the motion to strike is granted. With respect to the sixth special defense, the motion to strike is denied.

So ordered.

---------

Notes:

Previously, Brian Baker was the named enforcement officer, but was removed when the plaintiffs’ motion to substitute (#143) him was granted over the defendant’s objection (#148).

---------