Opinion
No. LLI CV 07 4006333S
June 10, 2008
MEMORANDUM OF DECISION
Before the court is a motion to strike filed by the defendant, the New Milford Zoning Commission, seeking to strike paragraph fifteen of the plaintiff's appeal, which alleges an unlawful taking of property in violation of article first, § 11 of our state constitution and in violation of the fifth and fourteenth amendments to the United States constitution, and also seeking to strike a corresponding paragraph of the plaintiff's prayer for relief. The plaintiff, Carl M. Dunham, Jr., filed a one-count appeal pursuant to General Statutes § 8-8 in connection with the defendant's denial of three applications. The appeal alleges as follows: the plaintiff is the owner of approximately 600 acres of real property abutting and adjacent to property owned by Dunham Farm, LLC. Dunham Farm, LLC, is the owner of approximately 165 acres of undeveloped land known as "Dunham Farm" in New Milford. Candlelight Farm, LLC, is the owner of approximately 155 acres of undeveloped land known as the "Rocky River parcel" in New Milford. The plaintiff also owns real property to the south of the Dunham Farm parcel and has granted Dunham Farm, LLC, an easement over that property for road construction and grading purposes. The above mentioned properties all have significant frontage along Rocky River Road.
General Statutes § 8-8(b) provides, in relevant part: "[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located."
The appeal further alleges that on or about January 23, 2007, the plaintiff, Dunham Farm, LLC, and Candlelight Farm, LLC, filed three applications with the defendant in connection with the proposed development of the Dunham Farm parcel as a 508-unit active adult community known as Dunham Farm. The applications included an application for site plan approval pursuant to Chapters 117 and 175 of the New Milford Zoning Regulations; an application for a special permit and site plan approval under Chapter 140 for earth removal on the project; and an application for a special permit and site plan approval pursuant to Chapter 180 for a use generating more than 500 vehicle trips per day. The applications proposed the reconstruction and improvement of Rocky River Road for the purpose of allowing the plaintiff to "exercise his easement of access over Rocky River Road given the failure of the Town of New Milford to properly maintain such highway." On August 7, 2007, the defendant voted to deny the three applications, citing seventeen reasons why the final site plan for the project failed to conform with Chapter 117 of the New Milford Zoning regulations.
The plaintiff filed this one-count appeal on August 28, 2007. The appeal includes paragraph fifteen, which states "[b]y denying the [p]laintiff the right to improve Rocky River Road, the [defendant] effected a taking of [the] [p]laintiff's property without compensation in violation of Article I, Section 11 of the Connecticut Constitution and in violation of the Fifth and Fourteenth Amendments to the United States Constitution." The corresponding prayer for relief asks "that the court, determine that the actions of the [defendant] constituted an unconstitutional taking of the [p]laintiff's property in violation of the Fifth and Fourteenth amendments to the United States Constitution . . ." The defendant moves to strike these paragraphs on the grounds that the plaintiff has failed to allege sufficient facts to constitute a taking claim and that it is legally insufficient to join a taking claim to an administrative appeal because "a claim for taking is a distinct claim from an administrative appeal and seeks distinct remedies." For the reasons below, the motion to strike is granted.
Standard
"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). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
"[M]ost trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." (Internal quotation marks omitted.) Guillemette v. Rockville Lodge No. 1359, Superior Court, judicial district of Tolland, Docket No. CV 02 0079083 (January 11, 2005, Scholl, J.) (38 Conn. L. Rptr. 513, 516-17); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . .").
Discussion
The defendant seeks to strike only select paragraphs of the complaint, arguing that paragraph fifteen, and its corresponding prayer for relief, constitute the entirety of the plaintiff's taking claim and do not allege sufficient facts to constitute a taking claim. The defendant contends that the taking claim in paragraph fifteen encompasses allegations contained in preceding paragraphs, including the allegations that the defendant acted illegally, arbitrarily and in abuse of its discretion, and that the defendant interfered with the plaintiff's property rights by precluding improvements to Rocky River Road, which negatively impacted the plaintiff's property value.
After considering the complaint in the light most favorable to the plaintiff, the court concludes that paragraph fifteen constitutes the entirety of the plaintiff's taking claim. The plaintiff's only allegation with regards to the taking claim is that "[b]y denying the [p]laintiff the right to improve Rocky River Road, the [defendant] effected a taking of [the] [p]laintiff's property without compensation in violation of Article I, Section 11 of the Connecticut Constitution and in violation of the Fifth and Fourteenth Amendments to the United States Constitution."
"Although property may be taken without any actual appropriation or physical intrusion . . . there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed . . . A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed." (Citations omitted; internal quotation marks omitted.) Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992). In DeMello v. Plainville, 170 Conn. 675, 680, 368 A.2d 71 (Conn. 1976), the Supreme Court upheld the trial court's sustaining of demurrer where the plaintiff did not allege "that [the defendant's] actions, with respect to his property, have been arbitrary, confiscatory, or in abuse of their discretion. He does not allege that he has been prevented from making any reasonable use of his property. Nor has he alleged that the town has entered into possession of his property." DeMello v. Plainville, 170 Conn. 675, 680, 368 A.2d 71 (Conn. 1976). The plaintiff's bare allegation that the defendant effected a taking of the plaintiff's property by denying the plaintiff the right to improve Rocky River Road is not legally sufficient to state a claim for an unconstitutional taking.
Given the court's conclusion as to the first ground of the motion to strike, it is unnecessary to consider the defendant's second ground. Accordingly, the motion to strike is granted.