Berka v. City of Middletown

195 Conn.App. 760

227 A.3d 78

George BERKA

v.CITY OF MIDDLETOWN

George Berka

v.City of Middletown

George Berka

v.City of Middletown

George Berka

v.City of Middletown et al.

AC 41902, (AC 42138), (AC 42139), (AC 42206)

Appellate Court of Connecticut.

Argued October 23, 2019

Officially released February 11, 2020

George Berka, self-represented, the appellant in each case (plaintiff).

Brig Smith, Middletown, for the appellee (defendant in first, second and third cases and named defendant in fourth case).

Lavine, Elgo and Bear, Js.

BEAR, J.

These four appeals pertain to certain real property in Middletown owned by the self-represented plaintiff, George Berka, and rented by him to multiple individuals. Although neither the cases nor the appeals have been officially consolidated, we write one opinion for the purpose of judicial economy and assess the claims made in each appeal.

The plaintiff appeals from four judgments of the Superior Court granting the motions of the defendant the city of Middletown¹ to dismiss the complaints in four cases for lack of subject matter jurisdiction. In two of his appeals to this court—Docket Nos. AC 41902 and AC 42206—the plaintiff's claims relate either to a citation issued to him in 2016 for conditions on his property alleged to have violated the Middletown blight ordinance, which citation subsequently was unilaterally withdrawn by the defendant, or to a subsequent citation issued to him in 2018 concerning essentially the same alleged violations. In his appeal in Docket No. AC 42138, the plaintiff challenges the denial of his application for a special exception to operate a sober house. The appeal in Docket No. AC 42139 concerns the propriety of the court's dismissal of the plaintiff's petition to have the blight ordinance invalidated on constitutional and other grounds. We affirm the judgments of the court with respect to the plaintiff's claims asserted in Docket Nos. AC 41902 and AC 42206. We dismiss Docket No. AC 42138 for lack of subject matter jurisdiction. We affirm the court's judgment in Docket No. AC 42139 with respect to its dismissal of the plaintiff's petition insofar as it (1) asks the court to amend the Middletown blight ordinance, and (2) is predicated on nonconstitutional grounds but we reverse the judgment of the trial court with respect to its dismissal of the plaintiff's constitutional claims asserted in an individual capacity.

The following undisputed facts and procedural history provide context for the plaintiff's four appeals. The plaintiff owns real property located at 5 Maple Place in Middletown (property) and rents rooms in the house on the property to individuals. The first appeal, Docket No. AC 41902, relates to the plaintiff's premature appeal to the trial court from the 2018 blight notice and subsequent citation. On January 10, 2018, the plaintiff was issued a notice of blight pursuant to chapter 120, article 11, § 120-25A of the City of Middletown Code of Ordinances (ordinance),² which was enacted in accordance with General Statutes § 7-152c (a). On February 14, 2018, after the plaintiff failed to remedy the alleged blighted conditions specified in the notice, the defendant issued a blight citation to the plaintiff. The citation provided the plaintiff fifteen days to pay the fines that had been assessed for the violations listed in the notice of blight. The plaintiff, however, brought an action in the trial court on March 22, 2018, prior to the issuance of a failure to pay fines notice in accordance with § 7-152c and the ordinance, and prior to any administrative hearing or assessment of fines as provided for by § 7-152c and the ordinance. The defendant filed a motion to dismiss the complaint in that action on May 24, 2018, which was granted by the court on July 20, 2018. The court concluded that it lacked subject matter jurisdiction over the plaintiff's claim because the plaintiff had failed to exhaust his administrative remedies and, accordingly, his claim was not ripe for judicial review.³

The second appeal to this court, Docket No. AC 42138, relates to the plaintiff's request to the Middletown Planning and Zoning Commission (commission) for a special exception to operate a sober house on his property. The commission denied the application without prejudice on the basis that the property was not in compliance with a number of Middletown local health and safety ordinances, for which the plaintiff previously had been cited in 2016. The denial of the application was published in the Hartford Courant on February 22, 2018.⁴ Forty days later, on April 3, 2018, the plaintiff appealed the denial to the trial court. The defendant filed a motion to dismiss that appeal on June 29, 2018, which was granted by the court on September 18, 2018, for lack of subject matter jurisdiction.

The plaintiff's third appeal to this court, Docket No. AC 42139, is from the dismissal of his petition to have the court invalidate or, in the alternative, amend the blight ordinance. On May 8, 2018, the plaintiff filed a "petition to overturn blight ordinance." On June 28, 2018, the defendant filed a motion to dismiss the plaintiff's petition, which the court granted on nonjusticiability grounds on September 18, 2018.

The fourth matter on appeal, Docket No. AC 42206, involves the defendant's unilateral withdrawal of the 2016 citation to the defendant. The plaintiff was issued a citation on May 27, 2016, for essentially the same underlying blight and city health code violations contained in the subsequent January 10, 2018, blight notice to him. The plaintiff was in the process of appealing that citation when the defendant unilaterally withdrew it on July 22, 2016.⁵ The plaintiff thereafter withdrew his 2016 appeal. Almost two years later, on May 8, 2018, the plaintiff served a complaint alleging that the defendant had attempted to deprive him of his constitutional rights by issuing the 2016 blight citation. At oral argument in the trial court, and in his brief on appeal, he claims that the defendant's withdrawal of the citation was evidence of its consciousness of guilt. The defendant filed a motion to dismiss that complaint on July 2, 2018. On October 17, 2018, the court granted the defendant's motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction on the basis of mootness.

We first set forth the applicable standard of review when considering a trial court's granting of a motion to dismiss. "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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.... Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous.... The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations....

"When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, 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.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.)

Hayes Family Ltd. Partnership v. Glastonbury , 132 Conn. App. 218, 221–22, 31 A.3d 429 (2011).

We address each appeal separately. Additional facts will be set forth as necessary.

IAC 41902

In Docket No. AC 41902, the plaintiff appeals from the court's granting of the defendant's motion to dismiss the plaintiff's appeal for lack of subject matter jurisdiction. On appeal to this court, the plaintiff claims that the Middletown blight ordinance, as applied to him, violates his due process and other rights. Specifically, he claims, inter alia, that the ordinance is difficult for an ordinary person to understand, that the appeal process is overly complicated, and that the fines imposed for violations are oppressively high. The following facts are relevant to this appeal.

The defendant issued to the plaintiff a notice of blight on January 10, 2018, and, on February 14, 2018, the defendant issued to the plaintiff a blight citation. The defendant issued a failure to pay fines notice to the plaintiff on March 28, 2018. Under § 120-25A of the ordinance, the plaintiff may seek a hearing in front of a citation hearing officer within ten days of the issuance of a failure to pay fines notice. There is no provision either in § 7-152c or the ordinance permitting an administrative appeal from the notice of blight or the blight citation. The plaintiff, moreover, filed an appeal from the issuance of the citation directly to the Superior Court on March 22, 2018—six days before the failure to pay fines notice was issued, and before he had filed any administrative appeal. At the time of filing his appeal to the court, the plaintiff did not have the right, pursuant either to § 7-152c or the ordinance, to seek administrative review by a Middletown administrative hearing officer. The plaintiff's first opportunity for an administrative hearing arose, pursuant to § 7-152c and the ordinance, only after the failure to pay fines notice was issued by the defendant on March 28, 2018.

"It is a settled principle of administrative law that, if an adequate...