Wozniak v. Town of Colchester

          Argued April 9, 2019

         Procedural History

         Action seeking, inter alia, a writ of mandamus, and for other relief, brought to the Superior Court in the judicial district of New London, where the court, Knox, J., granted the motion filed by the defendant for summary judgment and rendered judgment thereon, from which the plaintiffs appealed to this court; thereafter, the defendant filed a motion to dismiss the appeal, which this court denied without prejudice. Affirmed.

          Paul M. Geraghty, for the appellants (plaintiffs).

          Matthew Ranelli, with whom, on the brief, was Amber N. Sarno, for the appellee (defendant).

          Alvord, Elgo and Moll, Js.

          OPINION

          ELGO, J.

         This case concerns the obligation of a municipality to file an application on behalf of a property owner to correct flood maps promulgated by federal administrative authorities. The plaintiffs, Victor A. Wozniak and Olga E. Wozniak, ^[1] appeal from the summary judgment rendered in favor of the defendant, the town of Colchester. The dispositive issue is whether the trial court properly determined that no genuine issue of material fact existed as to whether the plaintiffs were entitled to a writ of mandamus.^[2] We affirm the judgment of the trial court.

         We begin by providing necessary context for the present dispute. ‘‘Prior to 1968, there was a growing concern that the private insurance industry was unable to offer reasonably priced flood insurance on a national basis. . . . Congress passed the National Flood Insurance Act (NFIA) of 1968 to address this concern.^[3] The purposes of the NFIA were to provide affordable flood insurance throughout the nation, encourage appropriate land use that would minimize the exposure of property to flood damage and loss, and thereby reduce federal expenditures for flood losses and disaster assistance. . . . To that end, NFIA authorized the Federal Emergency Management Agency (FEMA) to establish and carry out the National Flood Insurance Program . . . . There are three basic components of[that program]: (1) the identification and mapping of flood-prone communities, (2) the requirement that communities adopt and enforce floodplain management regulations that meet minimum eligibility criteria in order to qualify for flood insurance, and (3) the provision of flood insurance.'' (Citations omitted; footnote added; internal quotation marks omitted.) National Wildlife Federation v. Federal Emergency Management Agency, United States District Court, Docket No. C11-2044 (RSM), 2014 WL 5449859 *1 (W.D. Wash. October 24, 2014); see also 44 C.F.R. § 59.2.

         To carry out its mandate, the NFIA authorizes FEMA to ‘‘identify and publish information with respect to all flood plain areas, including coastal areas located in the United States, which have special flood hazards''^[4] and to ‘‘establish or update flood-risk zone data in all such areas, and make estimates with respect to the rates of probable flood caused loss for the various flood risk zones for each of these areas . . . .'' 42 U.S.C. § 4101 (a). That data then is memorialized on a flood insurance rate map, which is ‘‘an official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community. . . .'' 44 C.F.R. § 59.1. The present action concerns the mapping of flood prone areas in the defendant municipality.

         The following facts are gleaned from the pleadings, affidavits, and other proof submitted, viewed in a light most favorable to the plaintiff. See Dubinsky v. Black, 185 Conn.App. 53, 56, 196 A.3d 870 (2018). The defendant is a community, as that term is defined in the code, ^[5]that has participated in the National Flood Insurance Program since 1982, and thus is obligated to adopt adequate flood plain management regulations consistent with federal criteria. See 44 C.F.R. § 60.1. The defendant is also a mapping partner under FEMA guidelines for map modernization that helps ‘‘[ensure] the accuracy'' of flood insurance rate maps prepared by FEMA.

         At all relevant times, the plaintiffs owned real property known as159 Lebanon Avenue in Colchester (property), an undeveloped parcel of vacant land. The property is located in an area that is designated as a flood zone on Flood Insurance Rate Map number 09011C0154G (map) prepared by FEMA and dated July 18, 2011. In light of that designation, the plaintiffs had a survey of the property performed, which indicated that the map incorrectly located a portion of Judd Brook on the property. As Wozniak averred in his July 14, 2017 affidavit, the survey confirmed that the map ‘‘incorrectly depicts the location of Judd Brook, resulting in our [p]roperty being wrongfully determined to be in a flood zone.''

         On April4, 2012, Wozniak brought that alleged inaccuracy to FEMA's attention by submitting an application for a Letter of Map Amendment (LOMA).^[6] That application consisted of a two page letter from Wozniak, in which he indicated that ‘‘[t]he property is for sale and buyers don't want to hear about flood plains and flood insurance, '' and attached three maps of the area in question. As Wozniak explained in his application, ‘‘[u]sing Photoshop, [he] approximated the actual course of Judd Brook and added notes'' on one of those maps. By letter dated May 25, 2012, a FEMA official responded to Wozniak's LOMA application byrequesting additional information.^[7] There is no indication in the record before us that the plaintiffs ever responded to that request or provided any further documentation to FEMA in connection therewith.

         The record also contains three letters sent to the plaintiffs from the defendant's First Selectman, Gregg Schuster, in the summer and fall of 2012. In his August 1, 2012 letter, Schuster stated: ‘‘Based on the [defendant's] review of the materials you submitted, specifically FEMA's May 25, 2012 letter of [r]eply regarding your LOMA application, it appears you have been asked to supply additional data in order for FEMA to continue processing your request. It does not appear that they are asking you to submit a [Letter of Map Revision (LOMR)] application. In any event, as was done for your LOMA application, if in fact you are required to file a LOMR, the [defendant's] Chief Executive Officer . . . would assist you to the extent of reviewing your application and signing a concurrence form contained within your application. The [defendant] has done this for other private property LOMR applications in the past. However, all materials and maps required to complete the submission to FEMA are the private property owner's responsibility.'' In his September 7, 2012 letter, Schuster similarly stated that ‘‘[a]fter speaking with FEMA representatives, including Caitlin Clifford, who you recommended that we speak with, it is our understanding that as the property owner, there is no reason why you cannot continue with your LOMA application. Should you continue with your LOMA application, the [defendant] would be more than happy to assist you by giving you concurrence through the First Selectman's Office.'' In a third letter dated October 16, 2012, Schuster provided the plaintiffs detailed advice on how to prepare a ‘‘successful LOMA application.''^[8]

         In the months that followed, the plaintiffs continued to furnish the defendant with various documentation regarding the apparent inaccuracy on the map. As they allege in their operative complaint: ‘‘On various dates between October of 2012 and January of 2013 the [p]laintiffs submitted to the [defendant] scientific data which showed . . . the existing [map] for the [property] and the adjacent property to be incorrect. Specifically, the [p]laintiffs' survey showed that Judd Brook Channel as shown on the [map] was not in fact in the location shown on the [map] and that it was not on the [property]. Plaintiffs through historical data and survey data demonstrated that the sluiceway was located on the abutting property and as a result the flood plain elevation for the [property] was incorrect. This incorrect depiction places a significant portion of the [property] in the flood plain when it is not. As a result of this error, a substantial, if not the entire portion, of the [property] is rendered unusable.'' The plaintiffs thus demanded that the defendant file a LOMR application with FEMA on their behalf to correct the map in question.

         When the defendant declined to do so, this litigation ensued. The plaintiffs' operative complaint contains three counts. In the first, they seek a writ of mandamus to compel the defendant to file a LOMR application on their behalf to correct the alleged error on the map. The second count sounds in inverse condemnation, alleging that the defendant's failure to file a LOMR application ‘‘effectively resulted in a confiscation of the [p]roperty without compensation.'' In the third count, the plaintiffs alleged negligence on the defendant's part ‘‘in carrying out its obligations under the National Flood Insurance Program by failing to file a [LOMR] with FEMA.'' The defendants filed an answer, as well as a special defense to the third count of the complaint, on August 11, 2015. On August 18, 2016, the plaintiffs filed a certificate of closed pleadings, in which they requested a court trial.

         The defendants thereafter filed a motion for summary judgment, which was accompanied by several exhibits, including application forms and instructions for both LOMR and LOMA applications. In response, the plaintiffs filed an opposition, to which they attached copies of various correspondence and Wozniak's affidavit. The court heard argument from the parties on November 13, 2017. In its subsequent memorandum of decision, the court concluded that no genuine issue of material fact existed as to any of the three counts alleged in the complaint and that the defendant was entitled to judgment as a matter of law. Accordingly, the court rendered summary judgment in its favor. From that judgment, the plaintiffs now appeal.

         I

         As a preliminary matter, we address a question of mootness. Approximately ten months after the commencement of the present appeal, the defendant filed a motion to dismiss, in which it alleged that the plaintiffs' challenge to the court's ruling on their mandamus claim had been rendered moot by recent developments. Appended to that motion were copies of correspondence from FEMA officials who, in October, 2016, informed the defendant of a ‘‘new FEMA program'' known as ‘‘Risk Mapping, Assessment, and Planning, '' or ‘‘Risk MAP, '' that was intended to help ‘‘communities identify, assess, and reduce their flood risk'' by ‘‘combining quality engineering with updated flood hazard data . . . .'' In implementing that new program, FEMA solicited ‘‘any data . . . [that the defendant] would like to have taken into consideration when reviewing [the defendant's] flood risk . . . .'' The defendant's town engineer responded to that request by asking FEMA to review, inter alia, ‘‘the Flood Zone mapping on [the map] in the area of Judd Brook, North of Lebanon Avenue/State Route 16 for potential conflict between the flood limits/extents shown on the map and the actual flood limit elevations based on topography.''^[9] By letter dated October 17, 2018, a FEMA official notified the defendant it had completed the ‘‘discovery'' portion of the Risk MAP program and had ‘‘selected'' Judd Brook for a detailed study as part of its upcoming ‘‘engineering and mapping'' activities.

         The plaintiffs filed an objection to the motion to dismiss on December 3, 2018. Weeks later, they filed a supplement to the facts recited therein, in which the plaintiffs stipulated in relevant part that Judd Brook ‘‘will be reviewed [and] surveyed as part of the proposed field study'' to be conducted by FEMA as part of the Risk MAP program. They nevertheless maintained that the pendency of that study did not render the present appeal moot. By order dated March 13, 2019, this court denied the defendant's motion to dismiss ‘‘without prejudice to the panel that hears the merits of the appeal considering the issues raised in the motion to dismiss.'' At oral argument before this court, the parties renewed their respective claims, as set forth in the pleadings on the motion to dismiss.

         The question of mootness implicates the subject matter jurisdiction of this court and thus ‘‘may be raised at any time . . . .'' State v. Charlotte Hungerford Hospital, 308 Conn. 140, 143, 60 A.3d 946 (2013). ‘‘Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. . . . A case is considered moot if [the] court cannot grant the appellant any practical relief through its disposition of the merits . . . .'' (Citations omitted; internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1, 6, 127 A.3d 994 (2015). ‘‘In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.'' (Internal quotation marks omitted.) Middlebury v. Connecticut Siting Council, 326 Conn. 40, 54, 161 A.3d 537 (2017). Our review of the question of mootness is plenary. State v. Rodriguez, 320 Conn. 694, 699, 132 A.3d 731 (2016).

         We agree with the plaintiffs that FEMA's pending field study of Judd Brook does not render the present appeal moot. As FEMA officials plainly indicated in the October, 2016 letter to the defendant, Risk MAP is a ‘‘new'' program that is being implemented for the first time. Although the record before us, as supplemented by the materials appended to the defendant's motion to dismiss, indicates that implementation of the Risk MAP program in the lower Connecticut watershed began in November, 2016, the record is bereft of any indication as to when that program ultimately will conclude. In this regard, it bears emphasis that two years passed from the time that FEMA notified the defendant of implementation of the Risk MAP program in the lower Connecticut watershed to its announcement that Judd Brook had been selected for a detailed study during that program. Furthermore, in the October 17, 2018 letter to the defendant confirming that selection, the FEMA official cautioned the defendant that although field surveying ‘‘will be occurring during 2019, '' it was but one step in the Risk MAP program and that ‘‘[a]s this project continues, the [United States Geological Survey] will be conducting a number of other meetings with the stakeholders in the Lower Connecticut Valley Watershed to communicate the progress of the project and to solicit comments about draft and preliminary products.'' (Emphasis omitted.) In short, there is no indication in the record before us as to when the Risk MAP program will conclude and when any final determination regarding the delineation and designation of Judd Brook on the map will transpire.

         Because the question of mootness implicates the subject matter jurisdiction of this court, we are obligated to indulge every reasonable presumption in favor of jurisdiction in resolving that issue. See Mendillo v.Tinley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d 1154 (2018); Simes v.Simes, 95 Conn.App. 39, 42, 895 A.2d 852 (2006). Guided by that fundamental precept, we cannot conclude, on the limited record before us, that the pending review of Judd Brook under the Risk MAP program necessarily deprives this court of the ability to provide the plaintiffs with any meaningful relief. Should they prevail in this appeal, the plaintiffs would secure an order of mandamus directing the defendant to submit a LOMR application on their behalf. That relief could well provide a more expeditious resolution of the mapping issue regarding ...