Gresczyk v. Landis, No. HHD-CV-04-4004887 (Conn. Super. 5/25/2006)

Page 1

Unpublished Opinion

Bruce H. Gresczyk, Commissioner of Agriculture v. Virginia Landis et al. Opinion No.: 93676

No. HHD-CV-04-4004887

Superior Court of Connecticut

Judicial District of Hartford at Hartford

May 25, 2006

MEMORANDUM OF DECISION ON PLAINTIFF'S CORRECTED MOTION TO STRIKE DEFENDANTS' SPECIAL DEFENSES AND PRAYER FOR RELIEF AND CORRECTED MOTION TO DISMISS DEFENDANTS' COUNTERCLAIM

CHRISTINE E. KELLER, JUDGE.

The plaintiff, Bruce H. Gresczyk, the commissioner of the state of Connecticut Department of Agriculture (DOAg), brought this action against the defendants, Virginia Landis, individually, and Virginia Landis and Frederick Peacos, Jr. in their capacity as Trustees for the Rose Koniecko Irrevocable Trust, seeking to enjoin them from developing land located in Preston, Connecticut as a golf course. The plaintiff's complaint alleges that the commissioner of the DOAg, pursuant to a legislatively sanctioned program allowing for the preservation of farmland, purchased development rights from the defendants' predecessor in interest, Joseph Koniecko. The program, created pursuant to Chapter 422a of the General Statutes, allows the commissioner to buy development rights from farmers for non-agricultural purposes. The commissioner bought such development rights from the defendants' predecessor in title in the 1980s.

I.

A. Factual Background

The plaintiff brings this action for declaratory and injunctive relief in order to prevent the development of a golf course on farm land, commonly known as Koniecko Farm¹ in which the state owns certain development rights. In 1987, in consideration for the payment of two hundred thirty-two thousand six hundred three ($232,603.00) dollars, the state of Connecticut acquired the development rights on Koniecko Farm from its then owner, Joseph A. Koniecko, in order to preserve it in perpetuity as arable farm land.

The commissioner of the DOAg is empowered by Chapter 422a to acquire "development rights,"² as that term is defined by General Statutes §22-26bb(d), to "agricultural land,"³ as that term is defined by §22-26bb(a), on behalf of the state and to administer the state program to preserve that land.

The defendants, Virginia Landis and Frederick Peacos, Jr., are the trustees of the Rose Y. Koniecko Irrevocable Trust. In their capacities as trustees, they acquired the property that is the subject of this action, commonly known as Koniecko Farm, on June 9, 1993 via a quitclaim deed recorded in the town of Preston land records. As such, they became the successors in interest to Rose Y. Koniecko and, in turn, to her predecessor in title, Joseph A. Koniecko.

Prior to his conveyance of Koniecko Farm to Rose Y. Koniecko in May 1990, Joseph Koniecko conveyed to the state of Connecticut development rights, as that term is defined by §22-26bb, to Koniecko Farm on December 17, 1986 by warranty deed recorded in the Preston land records. That deed was followed by a correcting deed, conveying those same development rights in and to Koniecko Farm, which correcting deed was dated December 23, 1987 and recorded in the Preston land records.

The defendant Landis, individually and as trustee, and the defendant Peacos, as trustee, have taken steps to develop the Koniecko Farm for use as a golf course. These steps have included the submission to the planning and zoning commission of the town of Preston for zoning and site plan approval to construct a golf course and an application for an inland wetlands permit for such construction.

In November 2004, the defendants notified the town of Preston of their intent to then begin actual construction of the golf course. On November 5, 2004, the commissioner of the DOAg commenced this action and sought a temporary injunction, which was granted.

The state maintains that the conveyance of development rights by Joseph Koniecko to the state in 1987 precludes the development of Koniecko Farm as a golf course because that conveyance granted to the state any rights on the part of the fee owner and his successors in interest, namely the defendants, to develop, construct on or otherwise improve Koniecko Farm for uses that would render it no longer agricultural land. In other words, after the conveyance of development rights to the state by Joseph A. Koniecko, the state claims that he and his successors could no longer develop the land for purposes that would make it unsuitable for farming.

B. Procedural Background

On December 22, 2004, the defendants filed six special defenses and two counterclaims.⁴ The plaintiff filed a motion to strike the six special defenses and a motion to dismiss both counterclaims. On January 31, 2005, the court, Beach, J., ruled almost entirely in the plaintiff's favor, striking all six special defenses and the first counterclaim.⁵ See Commissioner of Agriculture v. Landis, Superior Court, judicial district of Hartford, Docket No. CV 044004887 (January 31, 2005, Beach, J.) On September 8, 2005, the defendants moved to amend their answer and filed three new special defenses and an amended counterclaim of inverse condemnation. The plaintiff filed an objection to the amendment. On November 28, 2005, the court, Langenbach, J., granted the motion to amend and overruled the plaintiff's objection. The issues now before the court are: (1) the plaintiff's corrected motion to strike the defendants' three special defenses and their prayers for relief in their counterclaim seeking the appointment of an appraiser and attorneys fees, and (2) the plaintiff's corrected motion to dismiss the amended counterclaim of inverse condemnation on the basis of sovereign immunity and lack of standing.

Both parties have filed memoranda of law. The court heard oral argument on March 13, 2006.

II. Standard of Review

A. Motion to Strike

"Whenever any party wishes to contest . . . (2) the legal sufficiency of any prayer for relief in any . . . counterclaim . . . or (5) the legal sufficiency of . . . any part of [an] answer, including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof" Practice Book §10-39(a). A prayer for relief should be "stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).

"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "The granting of a motion to strike a special defense is not a final judgment and is therefore not appealable." Mechanics Savings Bank v. Townley Corp., 38 Conn.App. 571, 573, 662 A.2d 815 (1995).

"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A 'speaking motion' to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).

B. 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." (Internal quotation marks omitted.) Practice Book §10-31(a)(1). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 501. "The motion to dismiss . . . admits all facts which are well pleaded." Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). See also Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 866 A.2d 599 (2004). "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 favorable to the pleader." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005). "The motion to dismiss . . . invokes the existing record and must be decided upon that alone. Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the [challenged portion of the pleading]." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 346-47.

At the commencement of oral argument on these motions, the defendants submitted an affidavit and other documentation, much of which is not appropriate for the purposes of consideration of the plaintiff's motion to strike or motion to dismiss. The "affidavit" is a brief in disguise; although the affiant is described as a self-employed landscaper, his affidavit presents a number of legal arguments substantially similar to those set forth in the defendants' brief and adds little to the arguments in the brief. There is information about the town of Preston's granting of a special exception for...