18 Conn. App. 393 | Conn. App. Ct. | 1989
The plaintiffs, the Seymour Housing Authority Tenants Association (association) and some members of the association in their individual capacity, appeal a decision by the trial court in an action brought against the defendants, the housing authority of the town of Seymour (authority) and Norman Ray, its executive director.
After some members of the association received eviction notices from the authority, the plaintiffs brought this action alleging that the defendants had arbitrarily set the maximum allowable income limits for residence in the moderate income housing project in violation of General Statutes § 8-72a.
The trial court determined that the authority had violated § 8-72a by not considering the average wage for the town of Seymour in its computation of the maximum income limits, and granted the injunctive relief requested, restraining the defendants from attempting to evict the plaintiffs until the defendants properly determined the maximum income limits. Although the court held that it lacked jurisdiction to make a declaratory judgment because proper notice had not been given to all interested parties, it nevertheless held that the statute in question was not unconstitutional on either due process or equal protection grounds or as an unconstitutional delegation of legislative power. The court also held that the plaintiffs did not have a constitutionally protected property interest in retaining their incomes that required due process protection, and that the plaintiffs were not entitled to an accounting and distribution of the unlawfully accumulated surcharge.
On appeal, the plaintiffs claim that the trial court erred in determining (1) that the plaintiffs did not have property interests entitled to constitutional protection and (2) that they were not entitled to an accounting and distribution of any excessive surcharges paid.
In 1982, the authority moved to evict all tenants who had been classified as over-income for at least two years. Without prior notice or an opportunity for tenants to be heard, the authority, in March, 1982, issued sixty-day notices to vacate pursuant to General Statutes § 8-73.
The procedure for setting maximum limits has not changed in twenty years. No policies or guidelines are given to authority members who set the limits, nor is there a schedule for reconsidering or adjusting the limits. When a commissioner moves to set a limit, the authority’s executive director consults an accountant for an economic overview of the project and then reports to the state housing commissioner. The report contains the dollar amount of the maximum limit requested by the executive director and the number of vacancies and pending applications for admission to the project. In the time that this procedure has been followed, the state department of housing has approved every request for a particular income limit submitted by the defendant authority. Neither the executive director nor any commissioner or other authorized person
The parties have also stipulated to the existence of an amount of annual income derived from the rental of seventy-two units that has remained the same since 1977. They also agreed on the total amount of the surcharges paid by over-income tenants since 1977, and on the amount of cash and additional total reserves accumulated by the authority since 1977.
I
The plaintiffs’ first claim is that the trial court erred in finding that they did not have property interests protected under the federal and state constitutions.
The only discernible constitutional claim supported by any legal authority appears to be the plaintiffs’ proposition that tenants of government subsidized housing projects have certain constitutionally protected property interests requiring procedural due process protections. The cases cited by the plaintiffs in support
Even assuming the plaintiffs have a property interest in retaining their incomes that might require some due process protection, we conclude that the allegations in their complaint do not correspond to the facts that gave rise to the constitutional remedies in the cases that they cite in support of their claim. Therefore, even if it were erroneous for the trial court not to recognize any such protected interest, it was not error to refuse the constitutionally based remedy requested. We also note that the plaintiffs’ wholesale constitutional attack on the court’s holding implies their belief that the failure of the authority to comply with the requirements of § 8-72a necessarily violates some constitutional right. Such a belief ignores the fact that we are a nation of limited government and that not every statutory violation implicates constitutional rights. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985).
II
The plaintiffs also claim that it was error for the trial court to refuse to order an accounting and distribution of the funds collected by the defendants from the plaintiffs in violation of § 8-72a.
Because of the complexity of the financial data involved in the assessment of the surcharges, at the time the plaintiffs filed the complaint they did not know how much they had paid in improper charges. They therefore requested a calculation or “accounting” to determine the amount of money, if any, that was to be returned to each plaintiff if the court found them entitled to reimbursement.
The trial court’s mischaracterization of the request for relief led it both to misapply the law of an action for accounting and to conclude erroneously that because the plaintiffs were not entitled to relief in an action for accounting, they were not entitled to a distribution. A decision on whether the plaintiffs are entitled to a distribution — in this case a reimbursement— of improperly collected money, is not dependent upon whether they are entitled to an accounting or calculation of the amount of such money. The plaintiffs’ entitlement to recovery must be determined before
Although we have concluded that the plaintiffs have not presented a constitutional route by which they may recover the improperly collected funds, there remain other possible means of recovery. These include statutory and equitable considerations. A statutory remedy does not appear to be available in this case because there is no language in chapter 128 that provides or indicates legislative intent to provide a remedy, monetary or otherwise, for violations of § 8-72a. Had the legislature intended to provide such a statutory remedy, it would have specifically written it. into the statute. See In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 106, 425 A.2d 588 (1979). “ ‘[I]t is not the province of a court to supply what the legislature chose to omit.’ ” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988), quoting Federal Aviation Administration v. Administrator, 196 Conn. 546, 549, 494 A.2d 564 (1985).
This leaves the issue of equitable considerations. Equity will intervene when legal relief is unavailable or inadequate. Norwich v. Lebanon, 200 Conn. 697, 711, 513 A.2d 77 (1986). Because the determination of what equity requires in a particular case is a matter within the discretion of the trial court; Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982); Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 540, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986); it is not for this court to determine such issues for the first time on appeal. The plaintiffs’ prayer for relief requested, inter alia, “any other relief appropriate in law and equity.” A general prayer for equitable relief is broad enough to permit “the long arm of equity” to include whatever relief “the court may from the nature of the case deem proper. Any relief can be
Because the trial court erroneously determined that the plaintiffs were not entitled to reimbursement of improperly collected funds solely because they did not meet the requirements for an action for accounting, the trial court did not consider the possibility of return of the improperly collected funds on the basis of any equitable considerations supported by the facts alleged and proved at trial. For this reason, we find error and remand for the trial court to determine whether there are equitable grounds that require the return of the improperly calculated surcharges. The court will be in a position to view the impact of such a remedy on the plaintiffs as well as on the defendant authority and, by balancing the equities, “fashion relief ‘molded to the needs of justice.’ Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985).” Hall v. Dichello Distributors, Inc., supra.
If, on remand, the court determines that equity requires reimbursement of the improperly collected
Although at trial the authority produced a calculation of the amounts paid as surcharges during the plaintiffs’ tenancies for the years 1976 through 1986,
The court’s order that the defendants compute the proper income limits before proceeding with evictions of over-income tenants required a determination solely of the correct current limits. If equity is to require reimbursement of funds already paid, it will be necessary
Ill
The defendants contend, for the first time on appeal, that the plaintiffs are guilty of laches because they have questioned the basis and formula for setting the maximum income limits since 1970 but did nothing about it until they brought this suit in 1982. First, we note that any relief the plaintiffs could receive would be based on the 1976 date set out in their complaint. See footnote 10, supra.
“A party may . . . be barred from seeking equitable relief by the defense of laches, which applies only if there has been an unreasonable, inexcusable and prejudicial delay in bringing suit. ‘A conclusion that a plaintiff has [not] been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.’ Papcun v. Pap-cun, 181 Conn. 618, 621, 436 A.2d 282 (1980).” (Citations omitted.) Dunham v. Dunham, 204 Conn. 303, 327, 528 A.2d 1123 (1987). “ ‘Delay alone is not sufficient to bar a right’; the delay in bringing suit must be ‘unduly’ prejudicial.” Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 1230 (1987), quoting Owens v. Doyle, 152 Conn. 199, 207, 205 A.2d 495 (1964). “The burden is on the party alleging laches to establish that defense.” Cummings v. Trip, supra. “ ‘The principal element in applying the doctrine of laches is the resulting prejudice to a defendant, rather than the delay itself.’ ” Id., 89, quoting 3 A. Rathkopf & D. Rathkopf,
There is error in part and the case is remanded with direction to determine whether equitable considerations require reimbursement of improperly collected surcharges, and, if so, for a calculation of the amount to be reimbursed to each plaintiff.
In this opinion the other judges concurred.
The plaintiffs withdrew the appeal as to the other defendants, the Connecticut housing commission and the Connecticut department of housing.
General Statutes (Rev. to 1983) § 8-72a provided: “Maximum income limits: Factors to be considered. In fixing maximum income limits under section 8-72, the authority or the developer and the commissioner of housing shall take into consideration (1) the latest average wage as computed by the labor commissioner for the city or town served by the authority, (2) the number of vacancies in the projects under the authority’s control, and (3) the number of applications for admission to tenancy which are refused because of income disqualification.” The legislature amended the statute in 1984 to add another factor, the town’s latest median income. The amendment does not apply, however, to this action.
Additionally, the prayer for relief requested both an order directing the authority to remedy allegedly hazardous conditions in the apartments and an award of attorney’s fees. The plaintiffs do not raise the hazardous conditions issue on appeal and, although they mention that the trial court denied their requests for attorney’s fees, they do not brief the issue. We therefore deem these claims abandoned. See Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).
The plaintiffs claim that the court’s denial of the requested accounting and distribution was based on its erroneous determination of their constitutional claim. We do not find support, however, in the memorandum of decision for this assertion.
General Statutes (Rev. to 1989) § 8-73 provides: “eviction of families HAVING INCOME OVER MAXIMUM LIMITS. WAIVER OF EVICTION REQUIREMENTS. (a) A tenant in a moderate rental housing project shall vacate the dwelling unit occupied by him not later than sixty days after the housing authority or developer has mailed to such tenant, properly addressed, postage prepaid, written notice that the annual income of such tenant’s family, determined under section 8-72, is in excess of that permitted for continued occupancy of such dwelling unit under said section. Upon the failure of such tenant to vacate such dwelling unit on or before the expiration of such sixty-day period and so long as such tenant continues to occupy such dwelling unit after the expiration thereof, such tenant shall be obligated, notwithstanding the provisions of section 8-72, to pay to the authority or developer monthly as rent for such dwelling unit an amount equal to the going rental therefor as fixed by the authority or developer plus an amount equal to two per cent of the excess of the annual income of such family over that permitted for continued occupancy of such dwelling unit under section 8-72.
*397 “(b) Notwithstanding the provisions of subsection (a), if the eviction of such tenants would result in or increase the number of vacancies in such project, the housing authority or developer may request approval of the commissioner of housing to permit continued occupancy by tenants having an annual income over the maximum limits established for such project and rental of existing vacant units to tenants having an annual income over such maximum limits. If the commissioner finds that the vacancy rate which would result from refusal to grant such approval may result in an inability of the project to provide an income adequate for debt service, if any, administration, including the state service charge, other operating costs and reserves for repairs, maintenance, replacements and collection costs, he may approve such occupancy for a period of one year, subject to renewal for additional one-year periods. The amount fixed as rent for units so occupied pursuant to this subsection shall be determined as provided in subsection (a) but in no event shall such rent be in excess of one hundred thirty-three percent of the going rental as established pursuant to said section 8-72.”
Although the plaintiffs claim a violation of their due process rights under both the federal and state constitutions, they have not provided a separate analysis of their state claim. We will therefore consider only the federal claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988); State v. Hall, 17 Conn. App. 502, 505 n.1, 554 A.2d 746 (1989).
The parties have not cited any of the cases that have held that the leasehold interests of government subsidized tenants do not require constitutional due process protection. See Ellis v. United States Department of Housing & Urban Development, 551 F.2d 13 (3d Cir. 1977); Grace Towers Tenants Assn. v. Grace Housing Development Fund Co., 538 F.2d 491 (2d Cir. 1976); Harlib v. Lynn, 511 F.2d 51 (7th Cir. 1975); Paulsen v. Coachlight Apartments Co., 507 F.2d 401 (6th Cir. 1974); Tenants’ Council of Tiber Island-Carrollsburg Square v. Lynn, 497 F.2d 648 (D.C. Cir. 1973), cert. denied, 419 U.S. 970, 95 S. Ct. 235, 42 L. Ed. 2d 186 (1974); McKinney v. Washington, 442 F.2d 726 (D.C. Cir. 1970); People’s Rights Organization v. Bethlehem Associates, 356 F. Sup. 407 (E.D. Pa. 1973), affd., 487 F.2d 1395 (3d Cir. 1973).
Although the plaintiffs are claiming that they have protected property interests in both continued residence and in retention of their incomes, because they received the relief requested enjoining their pending evictions until a proper income limit is set, the former interest is not an issue in this appeal.
An issue to be considered by the court in weighing the equities of this case would include the impact of a judgment for the plaintiffs on the authority’s ability to continue to provide moderate income housing. This issue involves consideration of the extent and propriety of the authority’s reserve accounts, the statutory prohibition against attaching the authority’s property; General Statutes § 8-65; the statutory requirement that the authority operate on a not for profit basis; General Statutes § 8-72; and whether any of these considerations could result in the authority’s either being unable to pay the judgment or passing any judgment costs on to the plaintiffs or any future tenants of the project in higher rent charges.
Although the plaintiffs claim that they are entitled to a calculation of amounts improperly paid from 1970 through 1976, we find that their complaint alleged improper action and requested a remedy only for action taken by the defendants from 1976 through 1986. Because the right of a plaintiff to recover is limited to the allegations in the complaint; Matthews v. E.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); Krattenstein v. Thomas, 7 Conn. App. 604, 610, 509 A.2d 1077 (1986); the plaintiffs in this case are not entitled to a calculation or recovery of money paid from 1970 to 1975. Even though the stipulation of facts as set out by the trial court relates to the prel976 actions of the defendants, “ ‘[fjacts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” Savin v. National Personnel Consultant, Inc., 4 Conn. App. 563, 567, 495 A.2d 1109 (1985).