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Yario v. Town of South Windsor

Superior Court of Connecticut, Judicial District of Hartford, Hartford

July 6, 2017

Nancy Yario et al.
v.
Town of South Windsor

          Filed: July 7, 2017

          MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#135)

          Antonio C. Robaina, J.

         FACTS

         On August 12, 2011, the plaintiffs, Nancy Yario and George Hill, filed the operative complaint in this action against the defendant, the Town of South Windsor. In the revised complaint, the plaintiffs allege the following facts. On November 15, 2007, the defendant constructed " Bark Park" (dog park), a 32, 672 square foot fenced dog park within Nevers Road Park, which is contiguous to Chief Ryan Way in South Windsor. The plaintiffs' property borders Chief Ryan Way and Nevers Road Park. Prior to the dog park's construction, the defendant failed to give adequate notice, hold hearings, or obtain the necessary reports, and information from boards and commissions regarding the dog park. The defendant failed to create adequate parking resulting in unreasonable traffic and parking problems. The noise created by the dogs and people at the dog park, and issues with traffic and parking is the proximate cause of the interference with the plaintiffs' quiet enjoyment of their property, the value of the plaintiffs' home, and their use of the public park.

         On February 24, 2012, the defendant filed an answer to the plaintiffs' revised complaint and asserted seven special defenses. Subsequently, the defendant filed a motion for summary judgment on the grounds that: (1) the defendant is immune from liability under General Statutes § 52-557n as to the plaintiffs' first count; [1] (2) even if the defendant is not immune from liability, the defendant did not violate any statutes, ordinances, or regulations as alleged by the plaintiffs; (3) the plaintiffs have failed to demonstrate that the dog park is a private nuisance; and (4) the plaintiffs have failed to demonstrate that the dog park is a public nuisance. In addition to its memorandum, the defendant has also submitted the following as exhibits: (1) the deposition of Yario; (2) a Google image of the dog park, Chief Ryan Way, and Andreis Trail (aerial photograph); (3) the signed and sworn affidavit of John Caldwell, defendant's superintendent of parks; (4) the defendant's zoning regulations; (5) correspondence from Deborah Reid, clerk of the council, to Matthew Galligan, town manager, dated February 20, 2008; (6) and the dog park regulations.

         The plaintiffs filed a memorandum of law in opposition to the motion for summary judgment and submitted the following: (1) the signed and sworn affidavit of Yario; (2) the deposition of Yario; and (3) the signed and sworn affidavit of Hill. The defendant submitted a reply to the plaintiffs' opposition to the summary judgment motion.

         DISCUSSION

         " Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 637 (2016).

         The defendant's motion asserts that it is entitled to judgment on four grounds: (1) it is immune from liability under § 52-557n as to the plaintiffs' first count because the defendant was engaging in discretionary governmental functions, and even if it is not immune from liability under § 52-557n, the defendant did not violate the various statutes, ordinances, and regulations as alleged by the plaintiffs; (2) the plaintiffs are not entitled to injunctive relief because the plaintiffs had an adequate remedy at law; [2] (3) the plaintiffs have failed to demonstrate that the dog park is a private nuisance under the framework established by Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002); and (4) the plaintiffs have failed to provide evidence to demonstrate that the dog park is a public nuisance. As to the first ground, the plaintiffs argue that the defendants are not immune from liability under § 52-557n because the defendant has failed to demonstrate that it was engaging in discretionary governmental functions. The plaintiffs further counter that the defendant violated statutes, ordinances, and regulations because the defendant failed to (1) file applications for a special exception; (2) provide adequate notice to abutting landowners; (3) procure necessary reports and input from various municipal boards and agencies; and (4) comply with its own open space master plan. As to the second ground, the plaintiffs argue that Practice Book § 10-25 permits plaintiffs to claim an alternative relief, which is necessary here, as damages are insufficient because an award of damages would not terminate the defendant's unauthorized use. As to the third ground, the plaintiffs argue that they have sufficiently pleaded a cause of action of common-law nuisance and the question of reasonableness is a question for the jury. As to the fourth ground, the plaintiffs counter that the defendant reasserts the same arguments in the present motion for summary judgment as it asserted in its unsuccessful motion to strike, and therefore, the court's decision on the defendant's motion to strike should control.[3]

         A

         Governmental Immunity

         Section 52-557n(b)(7) provides that a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from " the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation of such failure or refusal constitutes a reckless disregard for health or safety . . ." " Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48, 881 A.2d 194 (2005). " In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Id., 49. " [E]vidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive." Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012). " [T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . [unless] it is apparent from the complaint . . ." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Accordingly, " where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Id., 307-08.

         The defendant argues that it is immune from liability under § 52-557n as to the plaintiffs' first count because the defendant was engaging in discretionary governmental functions. In support of its argument, the defendant has submitted the zoning regulations and an affidavit. Nevers Road Park was established as a recreational area prior to the dog park's construction. The plaintiffs allege that the defendant violated Sections 2.1, 2.4, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 8.4, and 8.5 and Article 3[4] of the zoning regulations, and General Statutes § § 8-2, 8-3, and 8-24[5] when it constructed the dog park. Section 2.1 provides that the Planning and Zoning Commission (Commission) must comply with the zoning regulations. Section 2.4 does not appear to relate to this case as it applies to commercial and industrial use. Article 6 also does not appear to relate to the instant action as it applies to industrial, commercial, and residential zones. Last, Article 8 applies to zone changes and special exception uses. To counter, the plaintiffs have submitted an affidavit and a deposition. In the deposition, it is indicated that the defendant spent over $127, 000 on the dog park, some of which was donated, and therefore, the plaintiffs' argument is that the dog park was a " substantial improvement" to Nevers Road Park under § 8-24.

         In the present case, the defendant's failure to file an application for a special exception, provide notice, hold hearings, and the defendant's subsequent approval of the dog park under the zoning regulations constituted governmental acts involving the exercise of judgment or discretion. The plaintiffs fail to allege a specific directive, ordinance, or statute governing the defendant's requirement to file an application for a special exception, provide notice to abutting landowners, or hold hearings. For instance, Section 8.5(C) provides, " [t]he Commission may hold a public hearing regarding any site proposal if, in its judgment, the specific circumstances require such action." (Emphasis added.) This zoning regulation clearly involves the exercise of judgment or discretion, and thus, is a discretionary duty. In addition, the plaintiffs have not successfully alleged that the defendant's alleged failure " constitute[d] a reckless disregard ...


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