Ertel v. Rocque, No. CV-03-0100647-S (CT 1/21/2005), CV-03-0100647-S

CourtSupreme Court of Connecticut
Writing for the CourtAurigemma
Docket NumberNo. CV-03-0100647-S,CV-03-0100647-S
PartiesPeter H. Ertel v. Arthur J. Rocque, Jr. et al.
Decision Date21 January 2005

Page 1

Unpublished Opinion

Peter H. Ertel
Arthur J. Rocque, Jr. et al.
No. CV-03-0100647-S
Superior Court of Connecticut
Judicial District of Middlesex at Middletown
January 21, 2005


The defendants, Arthur J. Rocque, Jr. and Rachel Reich Towbin, employees of the Department of Environmental Protection (the "Department"), have moved to dismiss this action in which the plaintiff alleges violations of the First, Fifth and Fourteenth Amendments to the United States Constitution, and Article First §§4, 5, 11, 14 and 20 of the Constitution of the State of Connecticut. The plaintiff is suing both defendants in their individual and official capacities.

The defendants argue that all official capacity claims for money damages must be dismissed on sovereign immunity grounds, because the plaintiff has not obtained the required authorization from the claims commissioner to sue. They further argue that to the extent that the Amended Complaint of January 8, 2004 (the "Complaint") seeks injunctive relief, it must be dismissed, because the plaintiff has not adequately alleged that the defendants acted in excess of their statutory authority or pursuant to an unconstitutional statute. Finally, the defendants argue that they were acting in the discharge of their duties or within the scope of their employment when the alleged conduct occurred, and, therefore, are entitled to immunity under Conn. Gen. Stat. §4-165.

Factual Background

The defendants have provided the court with a number of decisions involving the subject matter of this lawsuit and the previous relationship between the plaintiff and the Department, the actions the Department has taken against the plaintiff and has asked the court to take judicial notice of the facts found in those decisions. The plaintiff has not objected to this request.

In August 1981, the plaintiff applied to the Department for a permit to extend a dock on property that he recently had purchased. Ertel v. Carothers, No. CV-89-362620, 1992 Conn. Super. LEXIS 1201, at *1 (Conn. Super. Ct. May 1, 1992). The dock was located between two of the parcels of land that comprised Oak Leaf Marina ("Oak Leaf"), which was owned by Scott and Sherry Masse. Complaint, Count One ¶¶7-8. On June 3, 1982, the Department issued the requested permit and required the plaintiff to complete the modification of the dock by June 3, 1985. Complaint, Count One ¶ 6; Ertel, 1992 Conn.Super. LEXIS 1201, at *1.

"On August 26, 1985, Oak Leaf had its attorney contact the [Department] regarding the plaintiff's failure to comply with the terms of the permit.1 A DEP inspection revealed that the plaintiff's dock, which was completed in 1984, did not conform to the permit "because the plaintiff had removed a pre-existing `dogleg' without permission."2 Ertel, 1992 Conn. Super. LEXIS 1201, at *2. The Department objected to the change and, in a letter dated December 30, 1985, informed the plaintiff that `to avoid permit suspension or revocation, you must relocate the pilings to a distance no greater than twenty feet from the pier' by April 15, 1986." Id.

On March 6, 1986, the plaintiff applied for a new permit that contained modified construction plans. Id. After requesting additional information, the DEP scheduled a public hearing on this application. However, on March 31, 1987, the plaintiff requested withdrawal of the application. Id. at *2-*3. On November 30, 1987, the plaintiff submitted an amended application for expanding his dock. Id. at *3.

In September 1988, after concluding that the plaintiff had violated Conn. Gen. Stat. §§22a-359-22a-363, the Department "by way of a notice of permit revocation and order to remove existing structures . . . revoked the plaintiff's permit and directed the plaintiff to remove all docks, pilings, floats and piers located seaward of the high tide line on his property." Id.; Notice of Permit Revocation dated September 30, 1988 at 1-2 (the "Revocation Notice"). The Department ordered the plaintiff to restore the shoreline at the site to the condition existing before the commencement of the unauthorized work. On October 14, 1988, the plaintiff requested an administrative hearing in order to contest this order. Revocation Notice at 2.

"After a thorough and comprehensive review of the entire record of a public hearing held on January 19 and March [30], 1989," the adjudicator issued a final decision and order that affirmed the Revocation Notice: Final Decision and Order In Re: Permit Revocation Proceeding Concerning Permit Number SD-82-153 dated May 9, 1989 at 1, 7 (the "Final Decision"). Ertel, 1992 Conn. Super. LEXIS 1201, at *4.

In the Final Decision, the adjudicator concluded, inter alia, that the plaintiff:

has for at least six years knowingly and willfully for private gain violated the terms of [his permit] and the public trust in that he has constructed and maintained a structure . . . which does not conform to the plans and specifications and conditions contained in the permit issued to him on June 3, 1982.

Such actions have continued without any physical attempt to bring the structure into compliance with the terms of the permit and despite the caveats contained in conditions Nos. 2 and 3 of the permit and the two warning letters sent by the DEP's Water Resources Unit to [the plaintiff].

Final Decision at 6.

The plaintiff appealed the Final Decision to the Superior Court. The trial court concluded that the "appeal is subject to dismissal for lack of subject matter jurisdiction," because the plaintiff failed to serve all parties to the appeal. Ertel, 1992 Conn. Super. LEXIS 1201, at *15. However, the trial court also addressed the merits of the appeal, rejecting all of the plaintiff's arguments, and concluding that:

The adjudicator's conclusions regarding the plaintiff's noncompliance are reasonable and supported by substantial evidence, as the record demonstrates that the plaintiff failed to comply with the terms of his permit, and that he had notice and warnings regarding his noncompliance. The agency's decision must be upheld because it can be reasonably inferred from the record that the plaintiff knowingly and willfully failed to comply with the terms of his permit.

Id. at *31-*32. The Appellate Court affirmed the trial court's decision. Ertel v. Carothers, 34 Conn. App. 18 (1994).

After exhausting his appeals, the plaintiff brought a declaratory judgment action seeking a clarification of the Final Decision. Specifically, the plaintiff requested that the court reconcile what he considered two ambiguous paragraphs in the order. Part A of the Final Decision required the plaintiff "to remove all construction seaward of the high tide line." The trial court theorized that "[t]his would appear to require him to remove even the dock that was in existence prior to his acquisition of the property and that had been authorized by a permit that is not in issue in this case." Part B "by contrast, required the plaintiff to restore the shoreline to the conditions `existing before the commencement of unauthorized work.'" The trial court believed that this part of the Final Decision might be in conflict with Part A because Part B "would appear to allow the plaintiff to leave the original dock intact, since it existed at the shoreline before the commencement of the work that the commissioner found to be unauthorized." Ertel v. Keeney, No. CV-94-536976, 1994 Conn. Super. LEXIS 2479, at *6 (Conn. Super. Ct. Sept. 21, 1994).

On May 8, 2000, the Department, after conducting "a limited fact-finding proceeding only for the purpose of taking evidence and hearing testimony on the factual question" presented by the plaintiff, issued a clarification to its May 9, 1989 Decision. Declaratory Ruling Petition dated May 8, 2000 at 1 (the "Clarification Ruling"). In the Clarification Ruling, the Department concluded that Parts A and B of the Decision did not contradict each other and ordered the plaintiff to comply with the Final Decision3 Id. at 3.

On February 5, 2003, the plaintiff filed a complaint against the present defendants, as well as against David Leff, the Deputy Commissioner of the Department. On August 27, 2003, this court, Gordon, J., granted the Department's motion to dismiss Leff pursuant to the doctrine of judicial immunity. Ertel v. Rocque, No. CV-30100647, 2003 Conn. Super. LEXIS 2417, at *1-*3 On January 8, 2004, the plaintiff filed his Amended Complaint.

Discussion of the Law and Ruling

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991) (internal quotation marks omitted.). A motion to dismiss may be brought to assert, inter alia, "lack of jurisdiction over the subject matter." Practice Book §10-31(a). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Brookridge Dist. Ass'n v. Planning & Zoning Comm'n, 259 Conn. 607, 611, 793 A.2d 215 (2002) (citation omitted; internal quotation marks omitted).

In addition, a court may take judicial notice of files in other cases, regardless of whether or not the other case is between the same parties. Drabik v. Town of East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995); Karp v. Urban Development Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972); Guerriero v. Golasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). Given the extensive litigation between the plaintiff and the Department beginning in the mid-1980s, the defendants have presented...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT