Mangiafico v. Town of Farmington

173 Conn.App. 178

163 A.3d 631

Enrico MANGIAFICO

v.TOWN OF FARMINGTON

AC 37976

Appellate Court of Connecticut.

Argued January 3, 2017

Officially released May 16, 2017

Kenneth R. Slater, Jr., with whom, on the brief, was Kelly C. McKeon, for the appellant (defendant).

Jon L. Schoenhorn, for the appellee (plaintiff).

Alvord, Keller and Beach, Js.

ALVORD, J.

The defendant, the town of Farmington (town), appeals from the judgment rendered by the trial court, Scholl, J. , in favor of the plaintiff, Enrico Mangiafico, on his "Petition to Reopen Assessment." The plaintiff's petition challenged the town's issuance of various citations for violations of the town's blight ordinance. On appeal, the town claims that the court, Robaina, J. , improperly (1) denied its motion to dismiss the plaintiff's action for lack of subject matter jurisdiction, and (2) determined that the town was judicially estopped from arguing that the plaintiff's claims were not ripe for adjudication because it had taken an inconsistent position in a prior action between the parties.¹ We agree with the town's claims and, accordingly, remand the case to the trial court with direction to dismiss the plaintiff's action.

The following facts, as either alleged in the petition or undisputed by the parties,² and procedural history are relevant to the resolution of the claims on appeal. The plaintiff's residence, located on Lakeview Drive in Farmington, suffered extensive damage prior to 2009, rendering it uninhabitable for a lengthy period of time. Delays in rebuilding were occasioned by his insurance carrier. He filed an action against the carrier, and they reached a settlement in August, 2011. In July, 2012, a group of residents in the plaintiff's neighborhood filed a complaint with the town manager concerning the appearance of the plaintiff's property. Shortly thereafter, a town official notified the plaintiff of the complaint.

Prior to 2012, the town adopted chapter 88 of the Code of the Town of Farmington (code) as one of its municipal ordinances. The provisions of chapter 88 address vacant blighted buildings that adversely affect property values within the town and that threaten the health, safety and general welfare of its residents (blight ordinance). Section 88–4 of the blight ordinance sets forth procedures for placing properties on a blighted property list. The ordinance further allows the town manager, or his designee, to issue citations and to impose a penalty of not more than $100 per day for violations of the blight ordinance. Section 88–5 of the blight ordinance and chapter 91 of the code, titled "citation hearing procedure," provide property owners with an administrative procedure for contesting liability for the blight citations and assessments.³

On August 14, 2012, the town council voted to add the plaintiff's property to the town's blighted property list. The town issued citations and imposed fines from September 4 through October 15, 2012, in the amount of $4000. At a hearing held on October 15, 2012, the building citation hearing officer reduced the amount of the plaintiff's fines to $2000 and entered an assessment in that amount. When the plaintiff failed to pay the assessed fines, the town placed a municipal real estate lien on the plaintiff's property.

Subsequently, the town issued additional citations and imposed fines of $100 per day from January 1 to February 19, 2013. The amount of those fines totaled $4700. The town placed a second municipal real estate lien on the plaintiff's property for his failure to pay the $4700 assessed by the hearing officer on February 21, 2013. Instead of appealing the assessments entered by the hearing officer to the Superior Court through the administrative procedure set forth in the code and General Statutes § 7–152c (g),⁴ the plaintiff brought an action alleging a violation of his due process rights and a taking under the federal and state constitutions, and the intentional infliction of emotional distress. He sought declaratory and injunctive relief, damages, and a discharge of the municipal real estate liens. Judge Scholl granted the town's motion to dismiss four of the five counts of the plaintiff's complaint on the ground that he failed to exhaust his administrative remedies. Judge Scholl granted the town's motion for summary judgment on the remaining count after concluding that the plaintiff could not collaterally attack the validity of the assessments underlying the municipal real estate liens. The plaintiff appealed, and we affirmed the judgment of the trial court. See Mangiafico v. Farmington , 173 Conn.App. 158, 163 A.3d 689 (2017).

On various dates between September 9, 2013, and May 27, 2014, the town again issued citations and imposed fines of $100 per day for the plaintiff's alleged violations of the town's blight ordinance. The fines totaled $25,800. The plaintiff requested a hearing before the building citation hearing officer in order to challenge the factual and legal basis for the citations. By letter dated September 8, 2014, the town informed the plaintiff that his request for a hearing was "premature" because the town had not sent him a notice regarding the issued citations, pursuant to § 88–5 (B) of the code,⁵ which would commence enforcement of the issued citations. The letter concluded: "If the Town chooses to pursue enforcement of such citations, notice will be issued in accordance with the ordinance."

On October 6, 2014, the plaintiff commenced the present action against the town, seeking judicial review of the town's "alleged assessment" pursuant to § 7–152c,⁶ General Statutes § 7–148aa⁷ and Practice Book § 23–51.⁸ On October 31, 2014, the town filed a motion to dismiss the plaintiff's action "because the claims set forth therein are not ripe for adjudication and the statutory requirements to enable a Practice Book § 23–51 hearing have not been met. As a result, the [trial court] lacks subject matter jurisdiction to hear this case." In support of its motion, the town filed a memorandum of law and an affidavit by Kathleen A. Eagan, the town manager. In her affidavit, the town manager attested that no notices for any of the citations at issue had been sent to the plaintiff pursuant to § 7–152c(c),⁹ that no hearing officer had been appointed in this matter, that no assessments had been entered with respect to any of the citations at issue, and that no municipal blight liens had been recorded by the town regarding those citations.

The plaintiff filed an opposition to the town's motion to dismiss on December 1, 2014. The plaintiff argued that the matter was "ripe for review," and that, in any event, the town "should be precluded from arguing the absence of ripeness ... due to judicial estoppel as a result of the contrary argument it made regarding the right to a de novo hearing in a pending 2013 action involving a different set of citations, where it successfully precluded even an injunction, based upon its assurances to the court that the plaintiff possessed the right to bring a challenge pursuant to § 7–152c." By order issued February 10, 2015, Judge Robaina denied the town's motion to dismiss. The notice of the denial provided: "The [town's] position is inconsistent with its prior argument in Mangiafico v. Town of Farmington [Docket No.] CV–13–6045140–S, which was adopted by the court." On May 1, 2015, Judge Scholl rendered judgment in favor of the plaintiff without trial.¹⁰ This appeal followed.

I

The town's first claim is that Judge Robaina improperly denied its motion to dismiss for lack of subject matter jurisdiction. The town argues that the matter was not ripe for adjudication because the plaintiff was not entitled to a hearing before the building citation hearing officer until after the town began enforcement proceedings with respect to the issued citations by sending the plaintiff a notice pursuant to § 7–152c(c). A notice pursuant to § 7–152c(c) would provide the plaintiff with the opportunity to request a hearing to contest liability. Following the hearing, the hearing officer would enter an assessment. The plaintiff, if dissatisfied, could then appeal from the assessment to the Superior Court pursuant to § 7–152c(g).¹¹

Before addressing the town's claims on appeal, we first address an issue raised by the plaintiff in his appellate brief and during oral argument before this court. The plaintiff claims that the town's appeal is moot because the town did not send a notice to the plaintiff pursuant to § 7–152c(c) within twelve months from the expiration of the final period for the uncontested payment of fines; see General Statutes § 7–152c(d) ; and, therefore, a hearing officer cannot enter assessments for the citations at issue in this appeal. Because the town did not pursue the enforcement of those citations within the requisite time period, the plaintiff argues that the town "forfeited any right in the future to schedule a hearing or collect any of these fines, and neither this court nor the Superior Court can render a judgment in its favor."

"Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. ... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. ... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... Mootness ... rais[es] a question of law over which we exercise plenary review." (Citation omitted; internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission , 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012).

In the present...