• Connecticut Appellate Court
  • Connecticut Appellate Court
  • AC 33672
  • Jan 15 2013 (Date Decided)
  • Laver, J.

The Connecticut Supreme Court made clear in the 1992 case of Upjohn Company v. Zoning Board of Appeals that a party who accepts the benefits of approval by a historic district commission and does not appeal whatever conditions come with the approval may not defend against later enforcement of those conditions by attacking their validity. The defendants, including Frank and Barbara Sciame, own property in Old Saybrook subject to the jurisdiction of the plaintiff, the Historic District Commission of the Borough of Fenwick. The defendants applied for a certificate of appropriateness to permit the retention of four granite posts installed during their property's renovation, which were not shown on the approved plans. The commission granted the certificate conditioned on two posts being lowered in height to four feet. The defendants did not appeal the decision. The commission filed an enforcement action. The defendants filed an answer, special defenses and a two count counterclaim. The first count alleged that the commission acted beyond its powers and the second count sought damages for intentional infliction of emotional distress. The trial court granted the commission's motion to strike both counterclaims. The defendants appealed claiming, first, that the court improperly determined that the commission's motion to strike met the requirements of Practice Book §10-41. The Appellate Court disagreed and affirmed the judgment. The commission, in the motion itself, offered two distinct grounds to strike the first count, submitting the specific statute and case upon which its claim of insufficiency was based. It explained the impact of the statute and case in its supporting memorandum of law. This approach clearly exceeded the required standard approved by the Supreme Court in the 1988 case of Rowe v. Godou. By not objecting to the motion to strike the second count, the defendants waived any defectiveness in pleading for that count. On the merits, the trial court properly determined that the first counterclaim was barred by Upjohn and C.G.S. §52-557n. For both counts the defendants were trying to do exactly what Upjohn prohibits—collaterally attack the validity of an unappealed decision. This was not a case warranting an exception. Further, the second counterclaim did not allege specific facts constituting the extreme and outrageous conduct required to state a claim for intentional infliction of emotional distress.