Posted by: Patricia Salkin | August 31, 2010

CT Supreme Court Finds Government Immunity from Negligence Action Due to Alleged Failure to Enforce Zoning Regulations

Plaintiffs filed negligence suit against the town of Westport, the planning and zoning board and three individual employees for allegedly issuing permits in violation of zoning regulations to a contractor who raised the grade of plaintiff’s abutting property, creating a slope that caused flooding on their property; improperly concluding that no zoning violations had been found based on defendant’s friendship with contractor; failing to respond to their requests for reasonable or proper inspection; and forcing them to initiate legal action against neighbors. 

The trial court found defendants were entitled to government immunity, thus requiring plaintiffs to provide an evidentiary basis for an exception to the enforcement of zoning regulations and what constitutes a reasonable or proper inspection, since both were considered discretionary acts.  Plaintiffs were not subject to the identifiable person-imminent harm exception because the complaint only alleged a “threat” to their septic system from the water runoff, and no failure had occurred.  Defendants motion for summary judgment was granted because plaintiffs did not show defendants were exempt from governmental immunity, public policy concerns weighed against imposing a duty of care to support an action in negligence, and the litigation expenses from a former suit were not recoverable. 

On appeal, plaintiffs argued that checking to see whether required permits had been obtained and filed, and accurate inspections, reporting, and enforcing zoning regulations did not constitute  discretionary acts, and the identifiable person-imminent harm exception did in fact apply because they owned the abutting property reportedly in violation of the regulations and the failure to enforce the regulations caused excessive amounts of surface water to be discharged every time it rained, causing flooding, erosion, and threatening the integrity of the septic system.

Applying the common law doctrine of tort liability, which holds a municipal employee liable for ministerial acts, but grants them immunity when performing a governmental act (which is discretionary in nature), the Court found that inspections to determine whether property conforms to regulations and codes involve an exercise of judgment, and as such were discretionary in nature.  In addition, the regulations on which the plaintiffs relied either imposed obligations on the permit applicant or required a predicate discretionary determination by the defendants as to whether a violation existed. 

Under the identifiable person/imminent harm exception to municipal liability, a public officer is not granted governmental immunity if it’s apparent their failure to act would be likely to subject an identifiable person to imminent harm- which requires the identification of a discrete place and time period at which the harm will occur, and not a foreseeable event at some unspecified point in the not too distant future.  The Appellate Court held that, although the plaintiffs’ property constituted a discrete place, and the rainfall would occur at some point in the future, a ‘significant rainfall causing excessive surface runoff’ was not imminent because it would occur at an indefinite point in time.  In addition, there was no definite point of time to have expected plaintiffs would incur expenses from initiating legal action as a result of defendants’ failure to respond satisfactorily to their complaint.

Lastly, since the defendants were entitled to governmental immunity, the issue of whether they owed the plaintiffs a duty that would support an action in negligence was not considered, and the trial court’s judgment granting defendants motion for summary judgment was affirmed.

Bonington v. Town of Westport, 2010 WL 2572818 (CT 7/6/2010).

The opinion can be acessed here.

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