160 Conn.App. 1
Conn. App. Ct.2015Background
- In Aug. 2011 the Milford zoning enforcement officer issued a certificate of zoning compliance to a neighbor to build a nonconforming structure on a lot abutting the plaintiff’s property. Folsom appealed that decision to the Milford Zoning Board of Appeals (the board).
- The board held a hearing in Sept. 2011 and upheld the officer’s issuance, finding no merger of lots; Folsom then appealed the board’s decision to Superior Court (administrative appeal).
- While the administrative appeal was pending, Folsom sued the city, the board, and the zoning enforcement officer seeking reimbursement of costs from litigating the administrative appeal and indemnification by the city.
- The Superior Court sustained Folsom’s administrative appeal (May 2013). Folsom then amended his reimbursement complaint to assert (1) personal liability of the zoning enforcement officer for negligent enforcement, (2) board liability for failure to disqualify for conflict of interest under § 8-11, and (3) municipal indemnification under § 7-465.
- Defendants moved to strike the third amended complaint asserting governmental immunity, lack of a private cause of action under § 8-11 (and mistakenly citing § 8-21), and no indemnification under § 7-465; the trial court granted the motion to strike and entered judgment for defendants. Folsom appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether governmental immunity bars claims against the zoning enforcement officer for issuing the certificate | Folsom: enforcement was ministerial; no discretion, so immunity doesn't apply | Defs: issuing a compliance certificate requires judgment/discretion; immunity applies | Court: acts were discretionary; governmental immunity barred the claim |
| Whether governmental immunity bars claims against the board for failing to disqualify members | Folsom: board should have disqualified for personal conflict; not shielded by immunity | Defs: determination of conflict is discretionary and factual; immunity applies | Court: identification of conflicts is discretionary; immunity barred the claim |
| Whether § 52-557n(c) (ethics exception) permits a private cause of action against the board as an entity | Folsom: § 52-557n(c) removes immunity where ethics violated; applies here | Defs: § 52-557n(c) protects individuals and requires individual-member allegations | Court: § 52-557n(c) pertains to individual members acting in bad faith; plaintiff sued the board as an entity and failed to plead individual-member violations |
| Whether § 8-11 supports a private cause of action against the zoning board as an entity for conflict of interest | Folsom: § 8-11 requires disqualification for personal interest and supports his claim | Defs: § 8-11 addresses individual members’ participation; plaintiff’s allegations don’t show personal bias | Court: plaintiff failed to allege a legally sufficient personal interest and targeted the board as an entity; § 8-11 does not create the alleged entity-level private cause of action |
Key Cases Cited
- Bonington v. Westport, 297 Conn. 297 (2010) (determination whether act is discretionary governs applicability of municipal immunity)
- Timber Trails Associates v. Planning & Zoning Commission, 99 Conn. App. 768 (2007) (decisions about conflicts and enforcement involve discretion)
- Thivierge v. Witham, 150 Conn. App. 769 (2014) (ministerial vs. discretionary-act analysis and when immunity can be decided on pleadings)
- Edgerton v. Clinton, 311 Conn. 217 (2014) (policy basis for discretionary-act immunity and distinction from ministerial duties)
- Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646 (2009) (standard of review on motion to strike; construe pleadings favorably)
- Violano v. Fernandez, 280 Conn. 310 (2006) (when immunity apparent on complaint, defendant may move to strike rather than plead immunity)
- Greenfield v. Reynolds, 122 Conn. App. 465 (2010) (enforcement under § 8-12 is discretionary, not ministerial)
- Nazarko v. Conservation Commission, 50 Conn. App. 548 (1998) (definition of personal interest/bias sufficient to disqualify a member)
- Anderson v. Zoning Commission, 157 Conn. 285 (1968) (courts should not require disqualification for any remote or speculative interest)