Opinion
No. LLI CV 07 4006348S
June 10, 2008
MEMORANDUM OF DECISION
Before the court is a motion to strike (#101) filed by the defendant, the New Milford Zoning Commission, seeking to strike paragraph 32(m) 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. The plaintiffs, Vespera Investments, LLC, Dunham Farm, LLC, and Candlelight Farm, LLC, 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: Dunham Farm, LLC, is the owner of approximately 163 acres of undeveloped land in New Milford ("Parcel A"). Candlelight Farm, LLC, is the owner of approximately 156 acres of undeveloped land in New Milford ("Parcel B") which is adjacent to the easterly boundary of Parcel A. Carl M. Dunham, Jr. is the owner of approximately 100 acres adjacent to Parcel A.
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 by the plaintiff, Vespera Investments, LLC, of Parcel A 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 to serve as an access road to Dunham Farm. On August 7, 2007, the defendant voted to deny the three applications.
The plaintiff filed this one-count appeal on August 30, 2007. The appeal includes paragraph 32(m), which states "In denying Vespera's application to improve Rocky River Road, the Commission's decision effected a taking of plaintiff's property without compensation in violation of Article First, Section 11 of the Connecticut Constitution and in violation of the Fifth and Fourteenth Amendments to the United States Constitution." Subsection (m) is part of a larger section which begins: "The defendant Commission's denial of Vespera's applications was unlawful, arbitrary, ultra vires, and abuse of its discretion, and in violation of the Connecticut Statutes and the Zoning Regulations of the town of New Milford in one or more of the following respects: . . ." The defendant moves to strike subparagraph 32(m) 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 one subparagraph of the complaint, arguing that paragraph 32(m), constitutes the entirety of the plaintiff's taking claim and does not allege sufficient facts to constitute a taking claim. The defendant contends that the taking claim in paragraph 32(m) 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 32(m) constitutes the entirety of the plaintiff's taking claim. The plaintiff's only allegation with regards to the taking claim is that "In denying Vespera's application to improve Rocky River Road, the Commission's decision effected a taking of plaintiff's property without compensation in violation of Article First, 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.