Wozniak v. Town of Colchester
| Decision Date | 09 January 2018 |
| Docket Number | KNLCV136016629S |
| Court | Connecticut Superior Court |
| Parties | Victor WOZNIAK v. TOWN OF COLCHESTER |
UNPUBLISHED OPINION
The Defendant, Town of Colchester (Town) filed its motion for summary judgment, dated May 1, 2017, on the ground of lack of subject matter jurisdiction and lack of duty owed to the Plaintiffs (# 121.00). In support of its motion for summary judgment, the Defendant filed a memorandum of law accompanied by exhibits. The Plaintiffs Victor A. Wozniak and Olga Wozniak (Wozniaks) filed a memorandum of law in opposition dated July 12, 2017 (# 126). The Plaintiffs’ memorandum of law was accompanied by exhibits and a separate affidavit of the Plaintiff Victor A. Wozniak (# 126.00). The Defendant Town filed a reply memorandum of law (# 131.00). The court heard argument on the motion for summary judgment on November 13, 2017.
The second amended complaint (# 114) is set forth in three counts as follows: count one, writ of mandamus; count two, inverse condemnation; and, count three, negligence. In the second amended complaint, it is alleged that the Plaintiffs Victor A. Wozniak and Olga E. Wozniak own property (Plaintiffs’ Property) in Colchester, Connecticut. The Defendant Town is a municipal authority. The Defendant Town is a Mapping Partner under FEMA and it is alleged that " [a] Mapping Partner’s responsibilities include initiating Letter of Map Revisions (LOMRs) when Flood Insurance Rate Maps (FIRMS) need to be updated or corrected." " One of the responsibilities is to prepare and insure the accuracy of any FIRM." The Plaintiffs claim that their Property is incorrectly listed on a Flood Insurance Rate Map (# 09011C 0154G, dated July 18, 2011) as being designated in a flood zone. (Id., Para. 8.) In addition, it is alleged as follows:
(Id.). In other words, the Plaintiffs claim that the Judd Brook is shown in the wrong location on the Federal Emergency Management Act (FEMA) map and the flood plain elevation for the Plaintiffs’ Property is incorrect. The Plaintiffs claim that " under FEMA regulations municipalities are mandated to regularly review and revise their maps so that they represent current conditions, " and the Town has failed to perform this ministerial act to update or correct the FIRM for the Plaintiffs’ Property. (Second Amended Compl., Paras. 15-16.) The Plaintiffs, in count one, seek a court order by writ of mandamus directing the Defendant Town to file a Letter of Map Revision with FEMA to correct the errors they believe are depicted on the FEMA flood insurance rate maps. In count two, the Plaintiffs claim that the failure to file the LOMR with regard to the Plaintiffs’ property has caused limited use of the Plaintiffs’ commercially zoned land, which is undevelopable because it is, in part, classified in a flood zone. Count three sets forth a negligence claim against the Defendant Town for the failure to file Letter of Map Revision with FEMA premised on the claim that the Town has a duty to do so.
The Defendant filed an answer and special defenses on August 11 2015. In its single special defense the Defendant claims the negligence count and claim for monetary damages are barred by the doctrine of government immunity. The Plaintiffs filed a reply to the special defense on August 25, 2015 and the matter was claimed to the trial list on August 18, 2016.
The Defendant subsequently filed this motion for summary judgment. The Defendant’s exhibits include blank forms or templates for both a FEMA Letter of Map Amendment (LOMA) and Letter of Map Revision (LOMR), along with the accompanying instructions.[1] These will be discussed more fully infra . The Plaintiffs’ opposition was supported by accompanying exhibits and the affidavit of Plaintiff Victor Wozniak. The Plaintiff’s exhibits include correspondence between the Town and FEMA with regard to initiating a LOMR for the diversion of the Judd Brook on a non-contiguous property located in the Town.[2] More particularly, prior to 2011, a portion of the Judd Brook located on an unrelated property, referred to as the S & S parcel, was diverted by placing a portion of it into piping. The Defendant filed a reply memorandum of law. In the Defendant’s reply it relies, in part, on the affidavit of the Plaintiff Victor Wozniak. The Defendant provided correspondence between the Plaintiffs and FEMA regarding a LOMA initiated by the Plaintiffs concerning Plaintiffs Property’s classification as flood zone.
The Plaintiffs’ Property has been designated, in part, as a flood area since inception of the relevant Federal Insurance Rate Map and continues to be so designated. The Court finds that there is no dispute that prior to 2011 the Judd Brook was diverted into piping on the S & S parcel. It is undisputed this diversion on the S & S parcel did not affect the location of the Judd Brook on the Plaintiffs’ property. (Aff. Wozniak.) It is also undisputed that the point of discharge following the re-routing of the Judd Brook did not change. (Id.)
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). Summary judgment shall be rendered " if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). " Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
The Defendant filed a motion for summary judgment on two legal bases: (1) the court lacks subject matter jurisdiction; and (2) it owes no duty to the Plaintiffs.
The Defendant claims that the regulations governing LOMRs do not give the Plaintiffs a private cause of action against the Town, the Town has no duty to file a LOMR on behalf of the Plaintiffs, and that the process of a LOMR is a discretionary act and triggers governmental immunity. The Defendant further claims that the inverse condemnation claim fails because the alleged taking is not the result of any action by the Town.
In each count of their complaint, the Plaintiffs rely on the regulation governing LOMRs to establish that the Defendant owes a duty to the Plaintiffs to file LOMR on their behalf and it has failed to do so. The Plaintiffs argue that the Town’s obligation to file a LOMR is non-discretionary.
The following law governing flood area maps maintained by and under the auspices of FEMA is applicable to this case. The National Flood Insurance Act (NFIA) was enacted by Title XIII of the Housing and Urban Development Act of 1965 to ensure flood insurance protection to property owners in flood prone areas. 42 U.S.C. § 4011 (2017); see also 44 C.F.R. § 59.2. The National Flood Insurance Program (NFIP) is a federal program, administered and implemented by FEMA, which enables private property owners to purchase federal flood insurance. 42 U.S.C. § 4001(d) (2017).
For a community to qualify for the sale of federally subsidized flood insurance, the community must adopt and submit to FEMA flood plain management regulations that meet the minimum standards established by FEMA. 44 C.F.R. § 59.2(b). Under the NFIA, a "...
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