A state Superior Court judge last week denied Grace Farms’ bid to dismiss parts of a lawsuit brought by neighbors who say the organization and its president are responsible for sediment, silt and turbid water entering a wetlands, stream and pond on their properties during construction of the Lukes Wood Road facility.
Starting in September 2013, Grace Farms violated a permit issued by the New Canaan Inland Wetlands Commission in several ways, including by failing to control storm water run-off, failing to hire an independent site monitor and failing to notify the town about problems of erosion and siltation, according to a complaint brought last June on behalf of two abutting neighbors by East Berlin, Conn.-based attorney Janet P. Brooks.
Attorneys had argued on behalf of Grace Farms and the organization that those neighbors lack the standing to sue for violations of an Inland Wetlands permit because they’re individuals and not the issuing agency, according to a decision filed April 10 by Judge Marshall K. Berger.
Yet “as abutting landowners, the plaintiffs have sufficiently alleged that they are personally aggrieved by the Grace defendants’ failures to comply with the conditions and that these failures have adversely affected the plaintiffs’ property and their use and enjoyment of it,” Berger wrote.
The judge continued: “Indeed, the plaintiffs’ interest in insuring that the Grace defendants did not violate the conditions of the permit could not be greater given that the plaintiffs’ property is downstream and that alleged discharges have occurred and continue to occur … therefore, the motion to dismiss count two is denied.”
In all, Brooks on behalf of her clients—Smith Ridge Road residents Timothy Curt and Dona Bissonnette—included five counts in the original complaint. In addition to claiming the permit violations, the lawsuit alleges that Grace Farms and other parties have run afoul of state laws regarding inland wetlands and environmental protection, and committed trespass and private nuisance.
Seven separate defendants are named in the complaint, represented by multiple attorneys. One of those firms, Robinson & Cole LLP of Stamford, represents two Grace Farms entities as well as Sharon Prince, the organization’s president. Attorneys from that firm could not immediately be reached for comment.
Saying the defendants “have violated the public trust in the natural resources of the State of Connecticut by unreasonably polluting or impairing the wetlands and watercourses on the Plaintiffs’ property,” Brooks in the complaint seeks damages on her clients’ behalf, as well as restoration of a watercourse on Grace Farms’ property and wetlands on the neighbors’ , assessment of civil penalties of up to $1,000 per violation (and $1,000 per day for continuing violations), as well as plaintiffs’ costs. It isn’t clear whether the case is headed to trial or whether the parties will seek to settle—no further events connected to the case have yet been scheduled, according to Connecticut Judicial Branch records.
The overarching complaint asserts that, starting in September 2013, there were at least 12 occasions when the defendants caused sediment to enter the plaintiffs’ properties—a combined approximately 9.5 acres on Smith Ridge Road.
As such, according to the suit, “the plaintiffs are personally aggrieved by the defendants’ unpermitted sedimentation, situation and increase in turbidity of, in and around wetlands and watercourses on Plaintiffs’ property because their property, as well as their use and enjoyment of it, has been adversely affected.”
Last August, a motion filed on Prince’s behalf sought to dismiss all counts on the grounds that they fail to state a claim because the allegations were not asserted against her in her personal capacity, according to Berger’s decision. She also claimed that the nuisance count is barred by the 2-year statute of limitations under state law, Berger wrote.
The complaint had said that Prince “has undertaken, at a minimum, supervisory responsibilities” with respect to construction activities “as well as its inadequate storm water and erosion control measures and its unsuccessful attempts to prevent the repeated sedimentation and siltation of and increased turbidity on the wetlands, stream and pond on plaintiffs’ property.”
Yet Prince, in an affidavit, argued against that premise, according to Berger’s memo, saying: “Neither I nor any of the other [Grace Farms Foundation] officers or directors were substantively or directly involved in the implementation of the Grace Farms design, nor did we supervise or control the construction or engineering activities involved in the development of Grace Farms … In my capacity as the president of [Grace Farms Foundation], I communicated with the plaintiffs so that they were aware that their concerns were acknowledged and were being seriously addressed. I felt it was my duty, as president of [Grace Farms Foundation], the property owner, to acknowledge their communications. However, consistent both with my lack of specific expertise and with the contractual relationship between [Grace Farms Foundation] and [construction company] Sciame and others for its separate management of the construction effort. I had no role in prescribing the initial measures for addressing or preventing storm water runoff or erosion at Grace Farms, nor was I involved in the evaluation any alleged failures or the recommendations for repair/supplementation of these measures.”
In denying Prince’s motion, Berger noted that her arguments go to the merits of the claims against her “and refute the allegations of her personal liability.”
Yet the court’s immediate decision is not to find whether or not Prince is liable—rather, “it is whether the court has jurisdiction to consider the plaintiffs’ allegations against Prince.”
“Because this ground for Prince’s motion to dismiss is not jurisdictional, the motion to dismiss the complaint in its entirety as to Prince is denied,” Berger wrote in his decision.
The judge also denied the defendants’ motion to dismiss a private nuisance claim on the grounds of the statute of limitations. The complaint alleges that the nuisance started in September 2013 and the case commenced starting in May 2016—more than two years later.
Berger noted that the plaintiffs argue the defendants’ acts were intentional rather than negligent, triggering a different standard for the statute of limitations.
“More importantly, it has long been our practice that a statute of limitations defense must be raised by a special defense and not by a motion to dismiss,” Berger wrote in his decision.
The judge also noted that each side is framing the nuisance in its own way. While the defendants claim the issue involves just one act—namely, their alleged failure to install appropriate sedimentation and erosion controls in September of 2013—the plaintiffs say that the “nuisance is continuing.”
“The inquiry of whether the nuisances are trespasses are continuing or permanent are factual issues,” Berger wrote. “Hence, the resolution of this issue is best left for a later time when all facts can be considered. Accordingly, the motions to dismiss are denied.”