SC Year In Review: Boundary Lines, Dog Bites And Variances
Before our annual walkabout among the land-related decisions of the Connecticut Supreme Court, let us highlight what you need to watch out for this coming year.
Heads Up, So to Speak
The euphoria this year for land use and real estate, and to some extent the environment, seems to have come from medical marijuana. The General Assembly enacted legislation and now regulations have been approved. You can go to the Department of Consumer Protection's website for just about everything you need to know about medical marijuana except maybe where to buy the most stylish bongs.
Even though U.S. Attorney General Eric Holder has said that he will let the states do their own thing unless they do not do it well (another "trust but verify"), many issues remain. What happens if a lease or loan instrument prohibits violation of federal laws? Banks, already thoroughly subdued by the post-recession regulation, want nothing to do with medical marijuana. Have you seen anyone advertising: "Your home for ganja banking?" State and federal drug-free school zone laws remain in effect and even Holder says the Department of Justice is going after anyone who comes close to exposing children to marijuana. Finally, unless you care to be Saul Goodman ("Better call Saul!"), you ought to be concerned about the big problem with ethical rules prohibiting violating the law if you are dealing with those dealing with marijuana. Remember, no matter what the U.S. Attorney General says and what the General Assembly enacts, growing, dispensing, possessing, and using marijuana is a federal crime under the Controlled Substances Act.
The environmental lawyers, those people who revel in sloshing about in the alphabet soup of such laws as TSCA, FIFRA, RCRA, CERCLA, and EPCRA, were whipsawed, waterboarded, and otherwise tortured this year by changes in the RSRs, which are, since you ask, the "Remediation Standard Regulations," and proposed changes in the Transfer Act. The Transfer Act, near as I can tell, is some mutant legal hybrid of the kid's games of hot potato and musical chairs, except that someone is left with a pile of methyl-ethyl bad stuff.
For the RSR story and links to the new regulations effective June 27, 2013, go deep into the DEEP's website. In the "go figure department," the DEEP tells us the RSRs "may be used at any site to determine whether or not remediation of contamination is necessary," but then says "[t]he RSRs do not create in and of themselves a requirement that remediation be undertaken, nor do they specify a time-frame for completing remediation."
Read the new regulations; you'll be instantly mesmerized. Many of us ended up as lawyers because we could barely pass Algebra I. With the amended RSRs we are blessed with new terms like this: "'Ninety-five percent upper confidence level of the arithmetic mean' means a value that, when repeatedly calculated for randomly drawn subsets of size n from a population, equals or exceeds the population arithmetic mean ninety-five percent of the time." Now I get it. And also typical of what you will find in the regulations is this amended formula for one type of risk assessment: (See Figure 1.)
Several changes were made that actually make cleanups easier, including leaving in place modestly polluted fill under a parking lot, exempting from remediation incidental releases from motor vehicles and non-volatile soil contamination if it has been exposed to rain infiltration for at least five years and hasn't gotten to groundwater, and a simplification and shortening of the period that groundwater must be monitored following remediation.
As to the ever-nettlesome Transfer Act, after much going back and forth, nothing happened. This year in what may be a remake of Groundhog Day with Bill Murray, we will likely see the Transfer Act debate on simply repealing it.
Take a look at Public Act 13-308 which restructures significant environmental hazard reporting requirements, and ask yourself, if it is such a hazard, why does it take effect two years from now?
The law also requires DEEP to hire a consultant to take a hard look at all risk assumptions in the regulations and the role of risk (health and ecological) in the state and propose recommendations as deemed necessary. There is a restructured brownfield program for DECD and revised environmental land use restrictions (some are calling it "ELUR light") with a new term "the activity and use limitation" — only problem — there are no implementing regulations so it cannot be used.
Highlights of the Year
Now, let us have a look at what the Connecticut Supreme Court offered up this past year that is inherently interesting and affects your practice involving land.
As Emily Litella Would Say: 'Never Mind.'
Vance v. Tassmer
307 Conn 635 (2013)
You hardly see these, but when you do, it is fun to imagine the Court's behind-the scenes discussion. This is a run-of-the-mine neighbor-against-neighbor boundary line dispute, with a dash of adverse possession, a shaky settlement that fell apart, an ill-considered variance application as part of the settlement, an alleged waiver of the right to enforce the settlement agreement, and ultimately the Court's grant of the petition for certification. It is a short, two-page, per curiam decision. Once you get half way through it you will say to yourself, "Why did the Court ever take this case?" And then when you get to the end of the decision you will read, "This case should be dismissed on the ground that certification was improvidently granted."
Good Fences Make Good Neighbors
Murphy v. EAPWJP LLC
306 Conn. 391 (2012)
The short version of the lesson learned in this case is that sometimes you have to do unneighborly things to protect your property rights. In this per curium decision, the Court again concluded that it should not have granted certification, and is so ruling let stand the appellate and trial court decisions that the owners of two neighboring upland lots acquired a prescriptive easement to the beach by crossing the beachfront property owner's parcel without permission since 1972. The only twist in the case was that a walkway the neighbors had constructed without benefit of permits had to be removed. The beachfront owner argued unsuccessfully that the illegal walkway somehow negated the prescriptive rights. The question was not properly preserved and raised on appeal and the Court did not consider it.
Something to Chew On
Giacalone v. Wallingford Housing Authority
306 Conn. 399 (2012)
Dog bite case. Now you're talking. For those of us in the real estate development business, for the last few years without much to do, our days have been filled with slip-and-fall and dog bite cases, so this one about the liability of the Housing Authority of the Town of Wallingford is of great interest and something we can sink our teeth into. We all know the "one bite" rule. If your dog has already bitten somebody, you know that your dog is potentially dangerous and you are going to be responsible the second time the dog bites somebody. Connecticut has a statutory strict liability rule at § 22-357 that makes the owner or keeper of a dog strictly liable, even on the first bite, regardless of the common law rule. In this made-for-a-final-exam question for first-year torts class, if the landlord — not an owner or keeper — knew that the dog was dangerous, but had nothing to do with the direct care or control over the dog, could that landlord be held responsible under the common law rule?
The end result in the case was foretold by the Court's 2008 decision in Auster v. Norwalk United Methodist Church, 286 Conn. 152, 165 in which the Court "recognized a broader theory of common-law liability" that could extend to an employer who provided housing to an employee and knew the employee's dog was dangerous, having bitten another employee. When the Court starts citing 1884, 1914 and 1928 decisions and uses phrases like "ordinary — indeed, hoary — principles of common-law liability could be brought to bear," you know you are on a trip down the memory lane of common law. Old vocabulary comes to mind, like "scienter."
And here is the crux of the decision "We conclude that a landlord's common-law duty to alleviate known dangers includes dangers posed by vicious dogs, …Whether a dangerous condition is created by rats, snow, rotting wood or vicious dogs, these differing facts present no fundamental ground of distinction. What defines the landlord's duty is the obligation to take reasonable measures to ensure that the space over which it exercises dominion is safe from dangers, and a landlord may incur liability by failing to do so."
In a footnote, the Court puts its holding on a short leash lest it be missed by the reader who might otherwise go barking up the wrong tree: "It is the landlord's control over the space, not its control over the potential danger, that gives rise to liability." That is the take away for anyone involved in real estate, which of course is everyone, and its impact obviously goes far beyond miscreant mutts.
Don't Believe Everything You Read
Anatra v. Madison Zoning Board of Appeals
307 Conn 728 (2013)
First, the plaintiffs tore down an old beach house and built a new one on the same footprint getting variances for the setbacks, side yards, lot coverage, and coastal setback that were violated in keeping the old footprint. The variance itself did not contain any express limitation on expanding the footprint. Later, they sought to convert an existing balcony into an uncovered deck fully complying with the existing dimensional requirements but expanding the old footprint and the question became whether the understanding that the footprint would never be enlarged had to be set forth as a condition of the variance to be enforceable.
The Court decided: "Conditions attached to the granting of a variance are not to be construed solely on the basis of the language in the certificate of variance." Lesson learned? You need to look behind the bare words of a variance as recorded on the land records and understand the totality of the process in which the variance was granted. The application, maps, and plans especially must be reviewed to see if they embody restrictions not included in the language of the variance itself.
More On the Web
This has been a busy year for cases involving land, too many to describe in depth here. If you go to the Law Tribune's website at www.ctlawtribune.com, and click on the Supreme Court Year in Review link next to the Hot Topics label at the top of the home page, you will find this article with 17 more cases, including direct links to all of the cases and other resources.
We hope you enjoy a busy year in the improving economy of real estate, land-use and environmental law.•