193 Conn.App. 842
Conn. App. Ct.2019Background
- Plaintiffs (Victor and Olga Wozniak) own undeveloped land in Colchester shown as in a FEMA special flood hazard area; a survey indicated Judd Brook was incorrectly depicted on the property.
- Victor submitted a LOMA application to FEMA in 2012; FEMA requested additional technical information and the record shows the plaintiffs did not complete that submission.
- Plaintiffs asked the town to file a LOMR on their behalf to correct the map; the town declined to initiate the LOMR but offered to review and sign a concurrence form if plaintiffs pursued it themselves.
- Plaintiffs sued seeking a writ of mandamus to compel the town to file a LOMR, plus inverse condemnation and negligence counts; the trial court granted summary judgment for the town.
- On appeal the town’s mootness argument (due to FEMA’s Risk MAP study of Judd Brook) was rejected; the appellate court affirmed summary judgment, holding no ministerial duty existed and plaintiffs had an adequate legal remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal due to FEMA Risk MAP study | Risk MAP selection doesn’t moot plaintiffs’ claim; court can still provide relief | Risk MAP study will resolve mapping, rendering appeal moot | Not moot — Risk MAP timeline uncertain; court must presume jurisdiction and relief (mandamus) could be meaningful |
| Whether 44 C.F.R. § 65.3 required town to file LOMR | § 65.3 mandates community notice to FEMA when data shows changes affecting flood conditions; town must file LOMR | § 65.3 applies only to "physical changes affecting flooding conditions" and no such changes occurred here | § 65.3 inapplicable — plaintiffs did not allege physical changes; claim fails as a matter of law |
| Whether 44 C.F.R. § 65.7 imposed ministerial duty on town to file LOMR | § 65.7 (floodway revisions) requires town to pursue map revision; thus ministerial duty exists | § 65.7 requires discretionary community determination (whether practicable alternatives exist) and concerns changes to floodways tied to physical/manmade alterations | § 65.7 is discretionary and addresses changes/floodways tied to physical alterations; no ministerial duty exists |
| Adequacy of legal remedy (necessity for mandamus) | Plaintiffs lack an adequate alternative and therefore need mandamus to obtain relief | Property owners can file LOMR themselves; FEMA procedures and instructions contemplate non‑community requesters and concurrence form; thus legal remedy exists | Plaintiffs have an adequate remedy (they may apply directly for LOMR/LOMA); mandamus unavailable |
Key Cases Cited
- Hennessey v. Bridgeport, 213 Conn. 656 (mandamus is an extraordinary prerogative writ)
- Stewart v. Watertown, 303 Conn. 699 (elements required to obtain mandamus)
- Lahiff v. St. Joseph’s Total Abstinence Society, 76 Conn. 648 (mandamus limited to exceptional conditions)
- AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409 (distinguishing ministerial and discretionary acts for mandamus)
- Lucenti v. Laviero, 327 Conn. 764 (summary judgment standard and appellate review)
- Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515 (indulge presumption in favor of jurisdiction when considering mootness)
- SS-II, LLC v. Bridge Street Associates, 293 Conn. 287 (test whether movant would be entitled to directed verdict under same facts)