Messing v. Town of Hamden, Civil No. 3:19-cv-1442(AWT)

• Decision Date: 13 May 2020
• Docket Number: Civil No. 3:19-cv-1442(AWT)
• Citation: 459 F.Supp.3d 464
• Parties: Noah A. MESSING, Plaintiff, v. TOWN OF HAMDEN, Defendant.
• Court: U.S. District Court — District of Connecticut

459 F.Supp.3d 464

Noah A. MESSING, Plaintiff,

v.TOWN OF HAMDEN, Defendant.

Civil No. 3:19-cv-1442(AWT)

United States District Court, D. Connecticut.

Signed May 13, 2020

Noah A. Messing, New Haven, CT, pro se.

James G. Williams, The Law Offices of Williams, Walsh & O'Connor, LLC, Scott Roland Ouellette, Williams Walsh & O'Connor, LLC, North Haven, CT, for Defendant.

RULING ON MOTION TO DISMISS

Alvin W. Thompson, United States District Judge

For the reasons set forth below, the defendant's motion to dismiss is being granted in part and denied in part. Count I remains.

I. FACTUAL ALLEGATIONS

For the purposes of this motion, the court takes as true the following allegations in the complaint. Plaintiff Noah A. Messing owns the property at 10 Deepwood Drive (the "Property") in the Town of Hamden (the "Town"). He purchased the Property in 2018. The Property sits at the bottom of a hilly road. Until 2016, Deepwood Drive had a drainage ditch or conduit running alongside the road which ensured that water runoff did not flood properties. In 2016 the Town repaved Deepwood Drive. In the process, it removed the drainage system and changed the grading of the road, which resulted in water flowing downhill and then veering down the driveway of the Property. Messing alleges that the Town knew or should have known that the way it repaved the road guaranteed that the Property would flood. Yet, to keep down the cost of the project, it chose not to add a drainage system.

Soon after purchasing the Property Messing leased it, and his tenants reported that the Property flooded whenever heavy or moderate rains fell. This would create pools of ice in the colder months. When humidity levels rose, the interior of the house on the Property would smell dank and moldy. Water seeped into the ground around the house, and then seeped into the house and damaged walls and weakened the house's foundation. The house became infested by mold. Messing alleges that the Property is worth at least $150,000 less than it was before the Town repaved Deepwood Drive.

Messing contacted the Town's engineering department, which sent two employees to inspect the Property. Those employees acknowledged that the grading of repaved road and its lack of a drainage system cause the flooding. They stated that they would speak to their colleagues and propose a solution. They never contacted Messing again.

II. LEGAL STANDARD

"A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court ‘lacks the statutory or constitutional power to adjudicate it[.]’ " Cortlandt St. Recovery Corp. v. Hellas Telecomm., 790 F.3d 411, 416-17 (2d. Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ). The party asserting subject matter jurisdiction "bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted).

However, the plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Id. at 568, 127 S.Ct. 1955. "The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ " Mytych v. May Dep't Stores Co., 34 F. Supp. 2d 130, 131 (D. Conn. 1999) (quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) ). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims." United States v. Yale New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683 ).

In its review of a motion to dismiss for failure to state a claim, the court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

III. DISCUSSION

A. Count I: Fifth Amendment Taking of Property

The Fifth Amendment of the U.S. Constitution states in pertinent part: "nor shall private property be taken for public use, without just compensation." U.S. Const., amend. V. The Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). The Takings Clause is applicable to the states and local governments. See Knick v. Twp. of Scott, ––– U.S. ––––, 139 S. Ct. 2162, 2170, 204 L.Ed.2d 558 (2019) ("If a local government takes private property without paying for it, that government has violated the Fifth Amendment.").

"The Supreme Court has recognized two branches of Takings Clause cases: physical takings and regulatory takings." 1256 Hertel Ave. Assocs., LLC v. Calloway, 761 F.3d 252, 263 (2d Cir. 2014). "A physical taking occurs when there is either a condemnation or a physical appropriation of property." Id. But "no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking." Ark. Game & Fish Comm'n v. United States, 568 U.S. 23, 31, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012).

In 2012, the Supreme Court held that "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection." Id. at 38, 133 S.Ct. 511 (emphasis added). But not all temporary government-induced flooding constitutes a taking. Rather, the Takings Clause inspection is a case-specific factual inquiry. "When regulation or temporary physical invasion by government interferes with private property ... time is ... a factor in determining the existence vel non of a compensable taking." Id. "Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action." Id. at 39, 133 S.Ct. 511. "So, too, are the character of the land at issue and the owner's ‘reasonable investment-backed expectations’ regarding the land's use." Id. (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) ). "Severity of the interference figures in the calculus as well." Id.

First, the Town contends that a taking did not occur here because "a taking only results when the government intends to invade a protected property interest or the asserted invasion is the ‘direct, natural, or probable result’ of an authorized activity and not the incidental or consequential injury inflicted by the action." (Def.’s Memo. Supp. Def.’s Mot. to Dismiss Pl.’s Compl. ("Def.’s Memo.") 6 (quoting Columbia Basin Orchard v. United States, 132 F. Supp. 707, 709 (Ct. Cl. 1955) ).) Thus, the Town argues that Count I should be dismissed because "there is no allegation ... that the Town ... intended to invade [the Property] with surface water runoff." (Id. at 7.)

But in response to the government's argument in Arkansas Game & Fish Commission that the flooding at issue was not foreseeable, the Federal Circuit, on remand, stated: "In order for a taking to occur, it is not necessary that the government intend to invade the property owner's rights, as long as the invasion that occurred was ‘the foreseeable or predictable result’ of the government's actions." Ark. Game & Fish Comm'n v. United States, 736 F.3d 1364, 1372 (Fed. Cir. 2013) ( Ark. Game & Fish Comm'n II ). As the Supreme Court stated, relevant to the takings inquiry is "the degree to which the invasion is intended or is the foreseeable result of authorized government action." Ark. Game & Fish Comm'n, 568 U.S. at 39, 133 S.Ct. 511 (emphasis added). Thus, the absence of an allegation that the Town intended to invade the Property is not dispositive.

Second, the Town argues that Count I fails because there is "no probable claim that the repaving of Deepwood Drive ‘guaranteed’ that 10 Deepwood Drive would flood [as] the ... ‘direct, natural, or probable result’ of the Town's public works project." (Def.’s Memo. 7.)

Although "takings liability does not arise from government inaction or failure to act," Ridge Line, Inc. v. United States, 346 F.3d 1346, 1356 (Fed. Cir. 2003), the causal link need not be "guaranteed" as the Town suggests. Rather, where government action "initiated a series of events, all ... in their natural order, by which the landowner was deprived of the beneficial use of portions of its land, a taking" may be found. Id. When that natural series of events was...