Victor A. WOZNIAK et al.
v.
TOWN OF COLCHESTER
Argued
April 9, 2019
Appeal
from Superior Court, Judicial District of New London, Knox,
J.
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[Copyrighted Material Omitted]
Page 134
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.
[193
Conn.App. 844] 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 [193 Conn.App. 845] 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
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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.
C 11-2044 (RSM), 2014 WL 5449859, *1 (W.D. Wash. October
24, 2014); see also 44 C.F.R. § 59.2.
[193
Conn.App. 846] 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.
[193
Conn.App. 847] At all relevant times, the plaintiffs owned
real property known as 159 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
April 4, 2012, Wozniak brought that alleged inaccuracy to
FEMAs attention by submitting an application for a Letter of
Map Amendment (LOMA).[6] That application
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consisted of a two page letter from Wozniak, in which he
indicated that "[t]he property is for sale and buyers
dont 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
Wozniaks LOMA application by requesting additional
information.[7] There is no indication in the record
before [193 Conn.App. 848] 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 defendants First Selectman, Gregg Schuster, in the
summer and fall of 2012. In his August 1, 2012 letter,
Schuster stated: "Based on the [defendants] review of
the materials you submitted, specifically FEMAs 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
[defendants] 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 owners 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
under-standing 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 Selectmans [193 Conn.App. 849]
Office." In a third letter dated October 16, 2012,
Schuster provided the plaintiffs detailed advice on how to
prepare a "successful LOMA
application."[8]
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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 [193 Conn.App.
850] 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 defendants 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 defendants
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 Wozniaks 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 ...