SUPERIOR COURT
J.D. OF DANBURY
AT DANBURY
STEVEN ROE
V.
TOWN OF NEW FAIRFIELD;
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
2. The Defendant, the Town of New Fairfield (the “Town”), is a municipality with its town hall located at 4 Brush Hill Road, New Fairfield, Connecticut.
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
COMPLAINT
Parties
1. The Plaintiff, Steven Roe (“Plaintiff” or “Roe”), is a resident taxpayer and an elector who is qualified to vote in a Town Meeting in the Town of New Fairfield, Connecticut.2. The Defendant, the Town of New Fairfield (the “Town”), is a municipality with its town hall located at 4 Brush Hill Road, New Fairfield, Connecticut.
3. The Defendant, the Board of Selectman for the Town (the “BOS”), is the board of selectman for the Town established and operating pursuant to C.G.S. § 7-12.
4. The Defendant, John Hodge, is the First Selectman for the Town (“Hodge” or the “First Selectman”) granted his powers pursuant to C.G.S. § 7-12a.
Facts Relevant to All Counts
5. The non-party, the Planning Commission (the “Commission”) is the Town’s planning commission acting pursuant to the relevant Connecticut General Statutes.
6. On or about March 9, 2011, Hodge, purporting to act with proper authority and on behalf of the Town, signed and executed the “Contract for Sale” attached hereto as Exhibit A and incorporated herein (the “Agreement”).
7. Pursuant to the Agreement, the Town purportedly became obligated to purchase the real property and improvements located at 212 Tower Road, Patterson, New York (the “Property”) from the non-party, Tower Hill Communications, LLC, a New York limited liability company with its address in Millbrook, New York.
8. Pursuant to the Agreement, Hodge, purporting to act with proper authority and on behalf of the Town, became obligated to purchase the Property for the sum of one hundred and ninety thousand dollars ($190,000.00), payable through the payment of a down payment of eighteen thousand dollars ($18,000.00) with the balance of one hundred and seventy-two dollars ($172,000.00) due at closing.
9. On or about March 9, 2011, the closing of the purchase occurred, and the Town purportedly became the record owner the Property (the “Purchase”). The sum of $190,000 has been paid from Town funds.
FIRST COUNT: Declaratory Judgment – Requirement of Town Meeting approval of the Town’s Purchase of the Property
1-9. Paragraphs 1 through 9 above are hereby incorporated as Paragraphs 1 through 9 of this First Count as if more fully set forth herein.
10. The Town has not enacted a municipal charter, applicable home rule ordinance, or other organic law pursuant to C.G.S. § 7-187 et seq., and, therefore, the Town’s powers and the respective powers of the Town’s officers, boards, and commissions are authorized by the applicable Connecticut General Statutes.
11. The Town Meeting is the legislative body of the Town, with the responsibility and charge of making legislative or policy decisions for the Town.
12. The Town’s purchase of the Property was a decision that required the approval of a Town Meeting.
13. The Town’s purchase of the Property was consummated without the consideration and approval of the Town Meeting and, therefore, the Purchase was unauthorized, illegal, and invalid.
14. A justiciable controversy between the parties, who have adverse interests, exists, and such controversy involves an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations, which requires settlement, and all persons having an interest in the subject matter of this Count are parties to the action or have been given reasonable notice thereof.
SECOND COUNT: Declaratory Judgment – Requirement of Board of Selectmen approval of the Town’s Purchase of the Property
1-14. Paragraphs 1 through 14 of the First Count are hereby incorporated as Paragraphs 1 through 14 of this Second Count as if more fully set forth herein.
15. The BOS’ powers are limited to those enumerated in the Connecticut General Statutes, including C.G.S. § 7-12, which states:
The selectmen of each town shall, forthwith, after the election or appointment of any town officers of whom an oath is required by law, cause them to be sworn to a faithful discharge of their respective duties. They shall superintend the concerns of the town, adjust and settle all claims against it and draw orders on the treasurer for their payment. They shall require of the treasurer a sufficient bond, with surety, conditioned for the faithful discharge of the duties of his office; and the selectmen who fail to require such bond shall be jointly and severally liable to the town for all moneys not accounted for by the treasurer. They shall make a sworn report to the treasurer of the amount, number and date of each town order drawn by them, at the end of each month; and they shall keep a true account of all expenditures in the form of a permanent record which shall be verified under oath at the end of the fiscal year and made available for auditing purposes and public inspection.
16. The Town’s purchase of the Property was also consummated without the consideration and approval by the BOS and, therefore, the Purchase was unauthorized, illegal, and invalid.
17. A justiciable controversy between the parties, who have adverse interests, exists, and such controversy involves an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations, which requires settlement, and all persons having an interest in the subject matter of this Count are parties to the action or have been given reasonable notice thereof.
THIRD COUNT: Declaratory Judgment – First Selectman’s Improper Purchase of the Property
1-17. Paragraphs 1 through 17 of the Second Count are hereby incorporated as Paragraphs 1 through 17 of this Third Count as if more fully set forth herein.
18. The First Selectman’s powers are limited to those enumerated in the Connecticut General Statutes, including C.G.S. § 7-12a, which states:
Unless otherwise provided by law, the first selectman, in each town for which its board of selectmen is the executive authority, shall be the chief executive officer of such town and shall be an ex-officio member, without vote, of all town boards, commissions and committees; provided nothing herein shall be construed to affect any special act which gives the first selectman the power to vote on such boards, commissions and committees.19. The First Selectman did not have the authority to expend Town funds and/or to purchase the Property without, inter alia, the approval of the Town Meeting and, therefore, the Purchase was unauthorized, illegal, and invalid.
20. A justiciable controversy between the parties, who have adverse interests, exists, and such controversy involves an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations, which requires settlement, and all persons having an interest in the subject matter of this Count are parties to the action or have been given reasonable notice thereof.
FOURTH COUNT: Declaratory Judgment – Requirement to Refer Proposal of Town’s Purchase of the Property to the Commission for a Report Prior to the Purchase
1-20. Paragraphs 1 through 20 of the Third Count are hereby incorporated as Paragraphs 1 through 20of this Fourth Count as if more fully set forth herein.
21. Pursuant to C.G.S. § 8-24, certain municipal actions, including a municipality’s purchase of land, require a referral to the municipality’s planning commission for a report. Said statute states:
No municipal agency or legislative body shall . . . acquire land for . . . or other municipally owned property . . . until the proposal to take such action has been referred to the commission for a report. Notwithstanding the provisions of this section, a municipality may take final action approving an appropriation for any proposal prior to the approval of the proposal by the commission pursuant to this section. The failure of the commission to report within thirty-five days after the date of official submission of the proposal to it for a report shall be taken as approval of the proposal. In the case of the disapproval of the proposal by the commission the reasons therefor shall be recorded and transmitted to the legislative body of the municipality. A proposal disapproved by the commission shall be adopted by the municipality or, in the case of disapproval of a proposal by the commission subsequent to final action by a municipality approving an appropriation for the proposal and the method of financing of such appropriation, such final action shall be effective, only after the subsequent approval of the proposal by (A) a two-thirds vote of the town council where one exists, or a majority vote of those present and voting in an annual or special town meeting, or (B) a two-thirds vote of the representative town meeting or city council or the warden and burgesses, as the case may be. . . .
22. The proposal for the Town’s purchase of the Property was not properly referred to the Commission, and no such recommendation was generated by the Commission, and, therefore, the Purchase was unauthorized, illegal, and invalid.
23. A justiciable controversy between the parties, who have adverse interests, exists, and such controversy involves an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations, which requires settlement, and all persons having an interest in the subject matter of this Count are parties to the action or have been given reasonable notice thereof.
WHEREFORE, the Plaintiff claims:
(1) With respect to the First Count, a declaratory judgment that the Town of New Fairfield’s purchase of the Property required the approval by its Town Meeting;
(2) With respect to the Second Count, a declaratory judgment that the Town of New Fairfield’s purchase of the Property also required the affirmative vote and approval by the Board of Selectmen;
(3) With respect to the Third Count, a declaratory judgment that the First Selectman was not properly authorized, by the Town Meeting and Board of Selectmen, to enter into the purchase and sale agreement obligating the Town to expend funds to purchase the Property or to proceed on the closing of the Property;
(4) With respect to the Fourth Count, a declaratory judgment that the Town of New Fairfield’s purchase of the Property required the referral to the Town’s Planning and Zoning Commission pursuant to C.G.S. § 8-24;
(5) Such other and further relief as the Court deems equitable.
PLAINTIFF,
By_______________________
John R. Downey
John W. Bradley, Jr.Rome McGuigan, P.C.
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
jdowney@rms-law.com
RETURN DATE: : SUPERIOR COURT
STEVEN ROE : J.D. OF DANBURY
V. : AT DANBURY
TOWN OF NEW FAIRFIELD;
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
By_______________________
John R. Downey
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
jdowney@rms-law.com
RETURN DATE: : SUPERIOR COURT
STEVEN ROE : J.D. OF DANBURY
V. : AT DANBURY
TOWN OF NEW FAIRFIELD;
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
STATEMENT OF AMOUNT IN DEMAND
Wherefore, the Plaintiff seeks the aforementioned declaratory orders.
PLAINTIFF,
By_______________________
John R. Downey
John W. Bradley, Jr.Rome McGuigan, P.C.
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
jdowney@rms-law.com
RETURN DATE: : SUPERIOR COURT
STEVEN ROE : J.D. OF DANBURY
V. : AT DANBURY
TOWN OF NEW FAIRFIELD;
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
By_______________________
John R. Downey
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
jdowney@rms-law.com
RETURN DATE: : SUPERIOR COURT
STEVEN ROE : J.D. OF DANBURY
V. : AT DANBURY
TOWN OF NEW FAIRFIELD;
BOARD OF SELECTMEN FOR THE
TOWN OF NEW FAIRFIELD; and
JOHN HODGE, FIRST SELECTMAN
FOR THE TOWN OF
NEW FAIRFIELD : APRIL __, 2011
PRACTICE BOOK § 17-56 CERTIFICATE
The undersigned represents that all interest persons have been joined as parties to this action seeking a declaratory judgment or have been given reasonable notice thereof.
In addition to including the Town of New Fairfield, the Board of Selectmen for the Town of New Fairfield, and John Hodge, the First Selectman for the Town of New Fairfield as Defendants, Plaintiff has also provided notice of this action to the Town of New Fairfield’s Board of Finance and its Planning Commission by sending a true and accurate copy of the summons, complaint, statement of amount in demand, and this certificate by certified mail, return receipt requested, to:
Town of New Fairfield
Board of Finance
c/o Mr. Wes Marsh, its Chairman
4 Brush Hill Road
New Fairfield, CT 06812
Town of New Fairfield
Planning Commission
c/o Mr. Michael Daood, its Chairman
4 Brush Hill Road
New Fairfield, CT 06812
PLAINTIFF,
By_______________________
John R. Downey
John W. Bradley, Jr.Rome McGuigan, P.C.
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
bcourtney@rms-law.com
jdowney@rms-law.com
HY9033
One State Street
Hartford, CT 06103
860-549-1000
860-724-3921 fax
bcourtney@rms-law.com
jdowney@rms-law.com
HY9033
