Perzanowski v. Salvio

• Decision Date: 04 January 1974
• Docket Number: Civ. No. 15536.
• Citation: 369 F. Supp. 223
• Parties: Henry PERZANOWSKI v. Laurino J. SALVIO et al.
• Court: U.S. District Court — District of Connecticut

369 F. Supp. 223

Henry PERZANOWSKI v. Laurino J. SALVIO et al.

Civ. No. 15536.

United States District Court, D. Connecticut.

January 4, 1974.

COPYRIGHT MATERIAL OMITTED

Bruce C. Mayor (Schweitzer & Mayor), Hartford, Conn., for plaintiff.

John B. Nolan (Day, Berry & Howard), Hartford, Conn., for defendants.

RULING ON MOTIONS TO DISMISS

CLARIE, District Judge.

The plaintiff, Henry Perzanowski, brought this action pursuant to 42 U.S. C. §§ 1983, 1988 and 28 U.S.C. §§ 1331, 1343, seeking monetary damages from the City of New Britain; its Building Official Laurino J. Salvio; and five members of its Building Commission, each of whom is sued in his individual capacity. The essence of the four count complaint is that the defendants have violated the plaintiff's rights under the fourteenth amendment to the United States Constitution by declaring a building owned by the plaintiff to be unsafe, and demolishing the same without affording due process or providing compensation. The defendants have moved to dismiss for lack of jurisdiction under 42 U.S.C. §§ 1983 and 1988 and 28 U.S. C. §§ 1343 and 1331, and for failure to state a claim upon which relief can be granted. The individual defendants' motions are denied; the municipal defendant's motion pursuant to Rule 12(b)(6), Fed.R.Civ.P., is granted.

Prior to June of 1972, the plaintiff was the owner of a three story, wooden frame building on Grove Street in New Britain, Connecticut. On or about May 20, 1970, a fire severely damaged that building; and on July 29, 1971, a registered letter was sent by the defendant Salvio to the plaintiff, informing him that the building had been found to be hazardous and ordering that it be demolished. The plaintiff was simultaneously advised of his "appeal rights." According to an affidavit filed by the defendant Salvio, the plaintiff refused to accept delivery of that letter, and a copy was therefore posted on the premises on August 23, 1971. A second notice was mailed to the plaintiff on October 15, 1971, again informing him of his "rights under the State Building Code" and notifying him that the building would be demolished if he failed to respond. Copies of these letters, however, have not been made available to the Court.

The defendant Salvio's affidavit further represents that the plaintiff attended a meeting of the New Britain Building Commission in early March of 1972, and requested an extension of time within which to repair his building. The Commission granted the plaintiff an extension, conditioned upon the posting of a bond to assure timely completion of the repairs. A few days later, however, the plaintiff expressed unwillingness to post such a bond. Accordingly, on March 13, 1972, the defendant Salvio requested that the City of New Britain appropriate funds for the demolition of the plaintiff's building. This appropriation was approved by the City's Common Council on March 15, 1972.

On March 21, 1972, the plaintiff petitioned the defendant Building Commission to have his case reviewed by a Board of Survey. The Commission granted the petitioner's request, and the defendant Salvio provided him with a copy of the State Building Code sections pertaining to Boards of Survey. The plaintiff then selected an engineer to represent his interests on the three member Board. However, the defendant Salvio's affidavit represents that the plaintiff then "refused to cooperate in choosing the neutral third member of the Board as required by the State Building Code." The plaintiff, on the other hand, maintains that through no fault of his own "the Board was never properly convened." In any event, no Board of Survey was convened and, in early May of 1972, the defendant Commission voted to "implement" its demolition order. Notice of the Commission's decision was conveyed to the petitioner's attorney on May 10, 1972, and the plaintiff discussed the Commission's decision with Salvio in a letter dated May 22, 1972. Demolition of the plaintiff's building commenced on June 14, 1972, and was completed within a week. Shortly thereafter, the plaintiff notified the defendant municipality of his intent to sue.

The defendants submit that the State Building Code, Conn. State Regs. § 19-395-100.0 et seq., "provides for speedy and effective administrative review of the actions of local building officials." According to the defendants, two avenues of administrative procedure are available to a person who considers himself aggrieved by a decision of a local building official. Such an aggrieved person may petition for the convening of a three member Board of Survey, an administrative body composed of a municipal representative, a representative selected by the petitioner himself, and a third, "neutral" member acceptable to, and selected by, the other two members. Alternatively, such an aggrieved person may, according to the defendants, appeal the decision of a municipal building official to a five member Board of Appeals. Decisions of Boards of Appeals are subject to review de novo by the State Building Code Standards Committee, whose decisions are, in turn, appealable to the State Court of Common Pleas.

The plaintiff does not dispute that an appeal from an adverse decision of a municipal building official may generally be perfected to a municipal Board of Appeals. Rather, the plaintiff submits that the appellate ladder portrayed by the defendants is unavailable to a person who, like the plaintiff, has been served with a demolition order. The "singular and final administrative remedy" available to such a person, the plaintiff maintains, is a review of that order by a three member Board of Survey, "the findings and determinations of any two members of which . . . shall be deemed conclusive, and . . . shall be binding upon the building official and all parties in interest." Conn. State Regs. § 19-395-126.52. The plaintiff equates this remedy with compulsory arbitration and contends, in effect, that a compulsory, non-reviewable administrative remedy is inadequate per se.

I.

The individual defendants' argument that Perzanowski's failure to exhaust state administrative remedies precludes an exercise of jurisdiction over his civil rights claim assumes that exhaustion of administrative remedies is required in § 1983 cases, and that the remedy available to him was, in fact, adequate. The defendants rely on the "long-standing doctrine of administrative law . . . that courts will not overturn actions of government agencies unless and until all statutorily provided remedies have been exhausted," K. Davis, Administrative Law Treatise, Sec. 20.01 et seq. (1958), and point specifically to Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970) and James v. Board of Education of Central District No. 1, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L.Ed.2d 491 (1972). In James the Court stated

"It is no longer open to dispute that a plaintiff with a claim for relief under the Civil Rights Act, 42 U.S.C. § 1983, is not required to exhaust state judicial remedies. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961); Rodriquez v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (in banc); Sostre v. McGinnis, 442 F. 2d 178, 182 (2d Cir. 1971) (in banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). It is still the law in this Circuit, however, that a Civil Rights plaintiff must exhaust state administrative remedies." 461 F.2d at 570.

Although the Court in Goetz v. Ansell, 477 F.2d 636 (2d Cir. 1973), decided slightly less than a year after James appeared to qualify its earlier holdings in James and Eisen by "putting to one side the question whether the doctrine . . . still applies in a section 1983 suit . . .," 477 F.2d at 637, n. 1, Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L.Ed.2d 488 (1973), and Blanton v. State University of New York, 489 F.2d 377, 383-384 (2d Cir. 1973), leave little doubt that a plaintiff cannot turn his back on an adequate state administrative remedy and "rush into a federal forum."

Nevertheless, an analysis of the type suggested in Gibson v. Berryhill, supra, see Blanton v. State University of New York, supra, 489 F.2d at 384 n. 10, requires that the defendants' motion pursuant to Rule 12(b)(1) be denied. This result is mandated not by the persuasiveness of the plaintiff's argument that his state administrative remedy was inadequate,¹ but by the absence of an adequate factual basis for a finding that the plaintiff did, in fact, fail to exhaust the administrative remedy that was available to him.

A reading of section 19-395-127.1 of the State Building Code,² and Conn. Gen.Stat. § 19-402,³ lends little support to the defendants' argument that the plaintiff could have sought administrative review from a five member Board of Appeals whose ruling could ultimately be appealed to the State Court of Common Pleas. There is, therefore, support for the plaintiff's argument that a three member Board of Survey was the sole administrative forum available to him, and that state judicial review of its decision was unavailable. See e. g., State v. Vachon, 140 Conn. 478, 485, 101 A.2d 507 (1953); Bahr Corp. v. O'Brion, 146 Conn. 237, 247, 149 A.2d 691 (1958). The defendant Salvio's affidavit, which the Court has considered in support of the individual defendants' Rule 12(b) (1) motion, 2A Moore, Federal Practice ¶ 12.09, falls far short of establishing that the plaintiff "turned his back" on the remedy available to him. That document, which raises as many questions as it answers, represents that the defendants advised the plaintiff of his "appeal rights," that the plaintiff sought review by a Board of Survey, but that the plaintiff "refused to cooperate in choosing the neutral third member of the Board as required by the State Building Code." The letters purporting to have advised the plaintiff of his appeal rights have not been...