Wozniak v. Colchester ( 2019 )

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VICTOR A. WOZNIAK ET AL. v. TOWN OF
COLCHESTER
(AC 41275)
Alvord, Elgo and Moll, Js.
Syllabus
The plaintiffs, V and O, appealed to this court from the summary judgment
rendered by the trial court in favor of the defendant town of Colchester.
The plaintiffs owned an undeveloped parcel of real property located in
Colchester in an area that is designated as a flood zone on a map
prepared by the Federal Emergency Management Agency (FEMA). A
survey indicated that the map incorrectly located a portion of a brook
on the property, which the plaintiffs claimed caused the property to be
improperly designated as being in a flood zone. V submitted to FEMA
an application for a Letter of Map Amendment to correct the map,
and FEMA requested additional information. The plaintiffs thereafter
demanded that the defendant file an application for a Letter of Map
Revision (LOMR) with FEMA on their behalf, and when the defendant
declined, the plaintiffs commenced this action seeking a writ of manda-
mus to compel the defendant to do so. The plaintiffs contended that
the applicable federal regulations (44 C.F.R. §§ 65.3 and 65.7) impose
a ministerial duty on the defendant to file a LOMR application on their
behalf to rectify the incorrect depiction of their property on the map.
After the plaintiffs appealed to this court from the summary judgment
rendered in the defendant’s favor, the defendant filed a motion to dismiss
the appeal, alleging that the appeal had been rendered moot by certain
recent developments. Specifically, in 2016, FEMA officials informed the
defendant of a new program that was intended to help communities
reduce their flood risk. The defendant’s town engineer asked FEMA to
review the flood zone mapping in the area of the subject brook for
potential conflicts between the flood limits shown on the map and the
actual flood limit elevations based on topography. In 2018, FEMA notified
the defendant that it had completed the discovery portion of the new
program and had selected the brook for an upcoming study. This court
denied the defendant’s motion to dismiss the appeal without preju-
dice. Held:
1. The defendant’s claim that the appeal was moot was unavailing, as FEMA’s
pending study of the brook did not render the appeal moot; correspon-
dence from FEMA to the defendant indicated that the new program was
being implemented for the first time, and the record did not indicate
when the program would conclude or when any final determination
regarding the brook would transpire, and, guided by the fundamental
precept that this court must indulge every reasonable presumption in
favor of jurisdiction in resolving the issue of mootness, this court could
not conclude on the limited record before it that the pending review of
the brook under the program necessarily deprived this court of the
ability to provide the plaintiffs with any meaningful relief.
2. The trial court properly rendered summary judgment in favor of the
defendant and determined that there was no genuine issue of material
fact that the plaintiffs were not entitled to a writ of mandamus to compel
the defendant to file a LOMR application on their behalf:
a. Despite the plaintiffs’ contention that the defendant owed a duty to
initiate a LOMR application pursuant to § 65.3, by its plain language
§ 65.3 concerns physical changes to property, it was undisputed that no
physical change affecting flooding conditions had occurred with respect
to the plaintiffs’ property, as the plaintiffs’ claim was that the brook
was improperly depicted on a portion of their property since the map
was promulgated, and, therefore, in the absence of any allegation that
the plaintiffs’ property underwent any physical change or that it was
affected by a physical change to another property, the plaintiffs’ claim
was untenable; moreover, to the extent that the plaintiffs attempted to
inject new factual allegations into the case for the first time on appeal,
such allegations were improper, having never been raised before the
trial court, and this court declined to consider them.
b. The plaintiffs could not prevail in their claim that § 65.7 imposed a
ministerial duty on the defendant to file a LOMR application to correct
the inaccurate description of the brook on their behalf: a prerequisite
to the extraordinary relief afforded by a writ of mandamus is the exis-
tence of a ministerial duty, and a community’s determination pursuant
to § 65.7, as to whether any ‘‘practicable alternatives exist’’ to revising
the boundaries of a previously adopted floodway is a quintessentially
discretionary function, as opposed to a ministerial function, as that
determination requires a community to exercise its judgment as to
whether alternatives to revising such boundaries are practical; moreover,
the applicable federal regulation (44 C.F.R. § 72.1) expressly indicates
that LOMR applications are predicated on proposed or actual manmade
alterations within the floodplain, § 65.7 plainly and unambiguously con-
cerns changes to floodways, and because the plaintiffs did not allege
any manmade alterations or physical changes affecting their property
or the designation thereof, § 65.7 was inapposite to the present case.
c. The plaintiffs did not demonstrate that they had no adequate remedy
at law: the plaintiffs neither alleged in their complaint nor provided
any evidence that property owners are precluded from filing LOMR
applications, and a review of the regulatory scheme indicated that prop-
erty owners were not precluded from filing LOMR applications, as the
National Flood Insurance Program plainly envisions the filing of LOMR
applications by parties other than local communities such as the defen-
dant; moreover, the instructions provided by FEMA for completing
LOMR applications require the submission of a concurrence form with
signatures of the requester, community official and engineer, the purpose
of which is to ensure that the community is aware of the impacts of
the LOMR application and which was further evidence that the program
envisions applicants other than local communities, and the plaintiffs
presented no basis on which this court reasonably could conclude that
a property owner is prohibited, as a matter of federal administrative
law, from filing a LOMR application, and the availability of that legal
remedy, which would provide the plaintiffs the relief that they sought,
was fatal to their mandamus action.
Argued April 9—officially released October 29, 2019
Procedural History
Action seeking, inter alia, a writ of mandamus, and
for other relief, brought to the Superior Court in the
judicial district of New London, where the court, Knox,
J., granted the motion filed by the defendant for sum-
mary judgment and rendered judgment thereon, from
which the plaintiffs appealed to this court; thereafter,
the defendant filed a motion to dismiss the appeal,
which this court denied without prejudice. Affirmed.
Paul M. Geraghty, for the appellants (plaintiffs).
Matthew Ranelli, with whom, on the brief, was
Amber N. Sarno, for the appellee (defendant).
Opinion
ELGO, J. This case concerns the obligation of a
municipality to file an application on behalf of a prop-
erty owner to correct flood maps promulgated by fed-
eral administrative authorities. The plaintiffs, Victor A.
Wozniak and Olga E. Wozniak,1 appeal from the sum-
mary judgment rendered in favor of the defendant, the
town of Colchester. The dispositive issue is whether
the trial court properly determined that no genuine
issue of material fact existed as to whether the plaintiffs
were entitled to a writ of mandamus.2 We affirm the
judgment of the trial court.
We begin by providing necessary context for the pres-
ent dispute. ‘‘Prior to 1968, there was a growing concern
that the private insurance industry was unable to offer
reasonably priced flood insurance on a national basis.
. . . Congress passed the National Flood Insurance Act
(NFIA) of 1968 to address this concern.3 The purposes
of the NFIA were to provide affordable flood insurance
throughout the nation, encourage appropriate land use
that would minimize the exposure of property to flood
damage and loss, and thereby reduce federal expendi-
tures for flood losses and disaster assistance. . . . To
that end, NFIA authorized the Federal Emergency Man-
agement Agency (FEMA) to establish and carry out the
National Flood Insurance Program . . . . There are
three basic components of [that program]: (1) the identi-
fication and mapping of flood-prone communities, (2)
the requirement that communities adopt and enforce
floodplain management regulations that meet minimum
eligibility criteria in order to qualify for flood insurance,
and (3) the provision of flood insurance.’’ (Citations
omitted; footnote added; internal quotation marks omit-
ted.) National Wildlife Federation v. Federal Emer-
gency Management Agency, United States District
Court, Docket No. C11-2044 (RSM), 2014 WL 5449859 *1
(W.D. Wash. October 24, 2014); see also 44 C.F.R. § 59.2.
To carry out its mandate, the NFIA authorizes FEMA
to ‘‘identify and publish information with respect to all
flood plain areas, including coastal areas located in the
United States, which have special flood hazards’’4 and
to ‘‘establish or update flood-risk zone data in all such
areas, and make estimates with respect to the rates of
probable flood caused loss for the various flood risk
zones for each of these areas . . . .’’ 42 U.S.C. § 4101
(a). That data then is memorialized on a flood insurance
rate map, which is ‘‘an official map of a community, on
which the Federal Insurance Administrator has deline-
ated both the special hazard areas and the risk premium
zones applicable to the community. . . .’’ 44 C.F.R.
§ 59.1. The present action concerns the mapping of
flood prone areas in the defendant municipality.
The following facts are gleaned from the pleadings,
affidavits, and other proof submitted, viewed in a light
most favorable to the plaintiff. See Dubinsky v. Black,
185 Conn. App. 53, 56, 196 A.3d 870 (2018). The defen-
dant is a community, as that term is defined in the code,5
that has participated in the National Flood Insurance
Program since 1982, and thus is obligated to adopt ade-
quate flood plain management regulations consistent
with federal criteria. See 44 C.F.R. § 60.1. The defendant
is also a mapping partner under FEMA guidelines for
map modernization that helps ‘‘[ensure] the accuracy’’
of flood insurance rate maps prepared by FEMA.
At all relevant times, the plaintiffs owned real prop-
erty known as 159 Lebanon Avenue in Colchester (prop-
erty), an undeveloped parcel of vacant land. The prop-
erty is located in an area that is designated as a flood
zone on Flood Insurance Rate Map number
09011C0154G (map) prepared by FEMA and dated July
18, 2011. In light of that designation, the plaintiffs had
a survey of the property performed, which indicated
that the map incorrectly located a portion of Judd Brook
on the property. As Wozniak averred in his July 14,
2017 affidavit, the survey confirmed that the map ‘‘incor-
rectly depicts the location of Judd Brook, resulting in
our [p]roperty being wrongfully determined to be in a
flood zone.’’
On April 4, 2012, Wozniak brought that alleged inaccu-
racy to FEMA’s attention by submitting an application
for a Letter of Map Amendment (LOMA).6 That applica-
tion consisted of a two page letter from Wozniak, in
which he indicated that ‘‘[t]he property is for sale and
buyers don’t want to hear about flood plains and flood
insurance,’’ and attached three maps of the area in ques-
tion. As Wozniak explained in his application, ‘‘[u]sing
Photoshop, [he] approximated the actual course of Judd
Brook and added notes’’ on one of those maps. By
letter dated May 25, 2012, a FEMA official responded
to Wozniak’s LOMA application by requesting additional
information.7 There is no indication in the record before
us that the plaintiffs ever responded to that request
or provided any further documentation to FEMA in
connection therewith.
The record also contains three letters sent to the
plaintiffs from the defendant’s First Selectman, Gregg
Schuster, in the summer and fall of 2012. In his August 1,
2012 letter, Schuster stated: ‘‘Based on the [defendant’s]
review of the materials you submitted, specifically
FEMA’s May 25, 2012 letter of [r]eply regarding your
LOMA application, it appears you have been asked to
supply additional data in order for FEMA to continue
processing your request. It does not appear that they
are asking you to submit a [Letter of Map Revision
(LOMR)] application. In any event, as was done for your
LOMA application, if in fact you are required to file a
LOMR, the [defendant’s] Chief Executive Officer . . .
would assist you to the extent of reviewing your applica-
tion and signing a concurrence form contained within
your application. The [defendant] has done this for
other private property LOMR applications in the past.
However, all materials and maps required to complete
the submission to FEMA are the private property own-
er’s responsibility.’’ In his September 7, 2012 letter,
Schuster similarly stated that ‘‘[a]fter speaking with
FEMA representatives, including Caitlin Clifford, who
you recommended that we speak with, it is our under-
standing that as the property owner, there is no reason
why you cannot continue with your LOMA application.
Should you continue with your LOMA application, the
[defendant] would be more than happy to assist you by
giving you concurrence through the First Selectman’s
Office.’’ In a third letter dated October 16, 2012, Schus-
ter provided the plaintiffs detailed advice on how to
prepare a ‘‘successful LOMA application.’’8
In the months that followed, the plaintiffs continued
to furnish the defendant with various documentation
regarding the apparent inaccuracy on the map. As they
allege in their operative complaint: ‘‘On various dates
between October of 2012 and January of 2013 the
[p]laintiffs submitted to the [defendant] scientific data
which showed . . . the existing [map] for the [prop-
erty] and the adjacent property to be incorrect. Specifi-
cally, the [p]laintiffs’ survey showed that Judd Brook
Channel as shown on the [map] was not in fact in the
location shown on the [map] and that it was not on the
[property]. Plaintiffs through historical data and survey
data demonstrated that the sluiceway was located on
the abutting property and as a result the flood plain
elevation for the [property] was incorrect. This incor-
rect depiction places a significant portion of the [prop-
erty] in the flood plain when it is not. As a result of
this error, a substantial, if not the entire portion, of the
[property] is rendered unusable.’’ The plaintiffs thus
demanded that the defendant file a LOMR application
with FEMA on their behalf to correct the map in
question.
When the defendant declined to do so, this litigation
ensued. The plaintiffs’ operative complaint contains
three counts. In the first, they seek a writ of mandamus
to compel the defendant to file a LOMR application on
their behalf to correct the alleged error on the map. The
second count sounds in inverse condemnation, alleging
that the defendant’s failure to file a LOMR application
‘‘effectively resulted in a confiscation of the [p]roperty
without compensation.’’ In the third count, the plaintiffs
alleged negligence on the defendant’s part ‘‘in carrying
out its obligations under the National Flood Insurance
Program by failing to file a [LOMR] with FEMA.’’ The
defendants filed an answer, as well as a special defense
to the third count of the complaint, on August 11, 2015.
On August 18, 2016, the plaintiffs filed a certificate of
closed pleadings, in which they requested a court trial.
The defendants thereafter filed a motion for summary
judgment, which was accompanied by several exhibits,
including application forms and instructions for both
LOMR and LOMA applications. In response, the plain-
tiffs filed an opposition, to which they attached copies
of various correspondence and Wozniak’s affidavit. The
court heard argument from the parties on November
13, 2017. In its subsequent memorandum of decision,
the court concluded that no genuine issue of material
fact existed as to any of the three counts alleged in
the complaint and that the defendant was entitled to
judgment as a matter of law. Accordingly, the court
rendered summary judgment in its favor. From that
judgment, the plaintiffs now appeal.
I
As a preliminary matter, we address a question of
mootness. Approximately ten months after the com-
mencement of the present appeal, the defendant filed a
motion to dismiss, in which it alleged that the plaintiffs’
challenge to the court’s ruling on their mandamus claim
had been rendered moot by recent developments.
Appended to that motion were copies of correspon-
dence from FEMA officials who, in October, 2016,
informed the defendant of a ‘‘new FEMA program’’
known as ‘‘Risk Mapping, Assessment, and Planning,’’
or ‘‘Risk MAP,’’ that was intended to help ‘‘communities
identify, assess, and reduce their flood risk’’ by ‘‘com-
bining quality engineering with updated flood hazard
data . . . .’’ In implementing that new program, FEMA
solicited ‘‘any data . . . [that the defendant] would like
to have taken into consideration when reviewing [the
defendant’s] flood risk . . . .’’ The defendant’s town
engineer responded to that request by asking FEMA to
review, inter alia, ‘‘the Flood Zone mapping on [the
map] in the area of Judd Brook, North of Lebanon
Avenue/State Route 16 for potential conflict between
the flood limits/extents shown on the map and the
actual flood limit elevations based on topography.’’9 By
letter dated October 17, 2018, a FEMA official notified
the defendant it had completed the ‘‘discovery’’ portion
of the Risk MAP program and had ‘‘selected’’ Judd
Brook for a detailed study as part of its upcoming ‘‘engi-
neering and mapping’’ activities.
The plaintiffs filed an objection to the motion to dis-
miss on December 3, 2018. Weeks later, they filed a
supplement to the facts recited therein, in which the
plaintiffs stipulated in relevant part that Judd Brook
‘‘will be reviewed [and] surveyed as part of the proposed
field study’’ to be conducted by FEMA as part of the
Risk MAP program. They nevertheless maintained that
the pendency of that study did not render the present
appeal moot. By order dated March 13, 2019, this court
denied the defendant’s motion to dismiss ‘‘without prej-
udice to the panel that hears the merits of the appeal
considering the issues raised in the motion to dismiss.’’
At oral argument before this court, the parties renewed
their respective claims, as set forth in the pleadings on
the motion to dismiss.
The question of mootness implicates the subject mat-
ter jurisdiction of this court and thus ‘‘may be raised
at any time . . . .’’ State v. Charlotte Hungerford Hos-
pital, 308 Conn. 140, 143, 60 A.3d 946 (2013). ‘‘Mootness
is a question of justiciability that must be determined
as a threshold matter because it implicates [this] court’s
subject matter jurisdiction . . . . Because courts are
established to resolve actual controversies, before a
claimed controversy is entitled to a resolution on the
merits it must be justiciable. . . . A case is considered
moot if [the] court cannot grant the appellant any practi-
cal relief through its disposition of the merits . . . .’’
(Citations omitted; internal quotation marks omitted.)
JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1,
6, 127 A.3d 994 (2015). ‘‘In determining mootness, the
dispositive question is whether a successful appeal
would benefit the plaintiff or defendant in any way.’’
(Internal quotation marks omitted.) Middlebury v. Con-
necticut Siting Council, 326 Conn. 40, 54, 161 A.3d
537 (2017). Our review of the question of mootness is
plenary. State v. Rodriguez, 320 Conn. 694, 699, 132
A.3d 731 (2016).
We agree with the plaintiffs that FEMA’s pending
field study of Judd Brook does not render the present
appeal moot. As FEMA officials plainly indicated in the
October, 2016 letter to the defendant, Risk MAP is a
‘‘new’’ program that is being implemented for the first
time. Although the record before us, as supplemented
by the materials appended to the defendant’s motion
to dismiss, indicates that implementation of the Risk
MAP program in the lower Connecticut watershed
began in November, 2016, the record is bereft of any
indication as to when that program ultimately will con-
clude. In this regard, it bears emphasis that two years
passed from the time that FEMA notified the defendant
of implementation of the Risk MAP program in the
lower Connecticut watershed to its announcement that
Judd Brook had been selected for a detailed study dur-
ing that program. Furthermore, in the October 17, 2018
letter to the defendant confirming that selection, the
FEMA official cautioned the defendant that although
field surveying ‘‘will be occurring during 2019,’’ it was
but one step in the Risk MAP program and that ‘‘[a]s
this project continues, the [United States Geological
Survey] will be conducting a number of other meetings
with the stakeholders in the Lower Connecticut Valley
Watershed to communicate the progress of the project
and to solicit comments about draft and preliminary
products.’’ (Emphasis omitted.) In short, there is no
indication in the record before us as to when the Risk
MAP program will conclude and when any final determi-
nation regarding the delineation and designation of
Judd Brook on the map will transpire.
Because the question of mootness implicates the sub-
ject matter jurisdiction of this court, we are obligated
to indulge every reasonable presumption in favor of
jurisdiction in resolving that issue. See Mendillo v. Tin-
ley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d
1154 (2018); Simes v. Simes, 95 Conn. App. 39, 42, 895
A.2d 852 (2006). Guided by that fundamental precept,
we cannot conclude, on the limited record before us,
that the pending review of Judd Brook under the Risk
MAP program necessarily deprives this court of the
ability to provide the plaintiffs with any meaningful
relief. Should they prevail in this appeal, the plaintiffs
would secure an order of mandamus directing the
defendant to submit a LOMR application on their behalf.
That relief could well provide a more expeditious reso-
lution of the mapping issue regarding their property
than the ongoing Risk MAP program, whose terminal
date remains unknown. For that reason, we conclude
that the present appeal is not moot and turn our atten-
tion to the merits of the plaintiff’s claim.
II
On appeal, the plaintiffs contend that the court
improperly rendered summary judgment in favor of the
defendant on their mandamus claim. We disagree.
The standard that governs our review of the trial
court’s decision to grant summary judgment is well
established. ‘‘Practice Book § 17-49 provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. In deciding a motion for summary judgment,
the trial court must view the evidence in the light most
favorable to the nonmoving party. . . . [T]he moving
party . . . has the burden of showing the absence of
any genuine issue as to all the material facts . . . .
When documents submitted in support of a motion for
summary judgment fail to establish that there is no
genuine issue of material fact, the nonmoving party
has no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the [nonmoving] party
must present evidence that demonstrates the existence
of some disputed factual issue. . . . Our review of the
trial court’s decision to grant the defendant’s motion
for summary judgment is plenary.’’ (Citations omitted;
internal quotation marks omitted.) Lucenti v. Laviero,
327 Conn. 764, 772–73, 176 A.3d 1 (2018). ‘‘The test is
whether the party moving for summary judgment would
be entitled to a directed verdict on the same facts.’’
(Internal quotation marks omitted.) SS-II, LLC v.
Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d
189 (2009).
In the present case, the plaintiffs seek a writ of man-
damus to compel the defendant to file a LOMR applica-
tion on their behalf. Mandamus is an ancient common
law writ ‘‘with deep roots in the American legal tradition
. . . .’’ Hennessey v. Bridgeport, 213 Conn. 656, 658,
569 A.2d 1122 (1990); see also Rapp v. Van Dusen, 350
F.2d 806, 811–12 (3d Cir. 1965). It is an order directed
at public officials that is injunctive in nature. 1 D. Dobbs,
Law of Remedies (2d Ed. 1993) § 2.9 (1), p.226; see also
Hamblen v. Kentucky Cabinet for Health & Family
Services, 322 S.W.3d 511, 518 (Ky. App. 2010) (manda-
mus ‘‘is quintessentially injunctive in nature’’); 2 E. Ste-
phenson, Connecticut Civil Procedure (3d Ed. 2002)
§ 224 (a), p.565 (mandamus a prerogative writ designed
to give state superintendence of activities of public
officers). As our Supreme Court has emphasized, ‘‘[t]he
writ of mandamus is an extraordinary remedy to be
applied only under exceptional conditions, and is not
to be extended beyond its well-established limits.’’ Lah-
iff v. St. Joseph’s Total Abstinence Society, 76 Conn.
648, 651, 57 A. 692 (1904); see also Cook-Littman v.
Board of Selectmen, 328 Conn. 758, 767 n.9, 184 A.3d
253 (2018); AvalonBay Communities, Inc. v. Sewer
Commission, 270 Conn. 409, 416–17, 853 A.2d 497
(2004).
‘‘[M]andamus neither gives nor defines rights which
one does not already have. It enforces, it commands,
performance of a duty. It acts at the instance of one
having a complete and immediate legal right; it cannot
and it does not act upon a doubtful or a contested right
. . . .’’ (Internal quotation marks omitted.) Hennessey
v. Bridgeport, supra, 213 Conn. 659. Accordingly, ‘‘[a]
party seeking a writ of mandamus must establish: (1)
that the plaintiff has a clear legal right to the perfor-
mance of a duty by the defendant; (2) that the defendant
has no discretion with respect to the performance of
that duty; and (3) that the plaintiff has no adequate
remedy at law.’’ (Internal quotation marks omitted.)
Stewart v. Watertown, 303 Conn. 699, 711–12, 38 A.3d
72 (2012).
The plaintiffs claim that the defendant possesses a
ministerial duty to file a LOMR application with FEMA
on their behalf to rectify the allegedly improper designa-
tion of their property, as alleged in the operative com-
plaint. In rendering summary judgment, the court con-
cluded that no genuine issue of material fact existed
to support such a duty on the part of the defendant.
We agree.
A
Undisputed Facts
Critical to our analysis are certain facts that are not
disputed by the parties. As the trial court noted in its
memorandum of decision, a portion of the property has
been designated in a flood area ‘‘since inception of the
[map] and continues to be so designated. . . . [T]here
is no dispute that [sometime] prior to 2011, Judd Brook
was diverted into piping on [an adjacent parcel to the
south of the plaintiffs’ property]. It is undisputed this
diversion on the [adjacent] parcel did not affect the
location of . . . Judd Brook on the plaintiffs’ property
[and that] the point of discharge following the rerouting
of . . . Judd Brook did not change.’’10
The plaintiffs’ claim, as set forth in their operative
complaint and Wozniak’s affidavit, is not that a physical
change to Judd Brook transpired that affected their
property. Rather, they claim that Judd Brook has been
improperly depicted on a portion of their property since
the map first was promulgated, which resulted in incor-
rect flood plain elevations on the property.11 That
‘‘incorrect depiction,’’ the plaintiffs allege, ‘‘places a
significant portion of [the] property in the flood plain
when it is not.’’
B
Relevant Federal Authority
It is well established that, in construing individual
regulations, we do not read them in isolation, but rather
in light of the entire act. See, e.g., Historic District
Commission v. Hall, 282 Conn. 672, 684, 923 A.2d 726
(2007) (‘‘Legislative intent is not to be found in an iso-
lated sentence; the whole statute must be considered.
. . . In construing [an] act . . . this court makes every
part operative and harmonious with every other part
insofar as is possible . . . .’’ [Citation omitted; internal
quotation marks omitted.]). Notably, the NFIA requires
FEMA to review flood maps once every five years to
assess the need to update all flood plain areas and flood
risk zones. See 42 U.S.C. § 4101 (e). In addition to that
quinquennial requirement, communities that participate
in the National Flood Insurance Program act as partners
with FEMA to ensure the accuracy of its flood insurance
rate maps. Under federal law, FEMA is authorized to
revise and update those maps ‘‘upon the request from
any State or local government stating that specific flood-
plain areas or flood-risk zones in the State or locality
need revision or updating, if sufficient technical data
justifying the request is submitted . . . .’’ 42 U.S.C.
§ 4101 (f) (2).
The National Flood Insurance Program, which is cod-
ified at 44 C.F.R. § 59.1 et seq., specifies the manner by
which communities may file a request with FEMA to
revise a flood insurance rate map. The mandamus
action now before us is predicated on the plaintiffs’
contention that 44 C.F.R. §§ 65.3 and 65.7 impose a
ministerial duty on the defendant to file a LOMR to
rectify the incorrect depiction of their property on the
map. For its part, the defendant acknowledges that, as
a mapping partner, it is permitted to request revisions
to flood insurance rate maps. It nonetheless maintains
that federal law imposes no mandatory duty on munici-
palities to do so at the behest of a property owner. Our
analysis, therefore, centers on the relevant provisions
of the National Flood Insurance Program.
In considering those provisions, we note that
‘‘[a]dministrative regulations have the full force and
effect of statutory law and are interpreted using the
same process as statutory construction, namely, under
the well established principles of General Statutes § 1-
2z. . . . When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . [Section] 1-2z directs this court to first
consider the text of the statute and its relationship to
other statutes to determine its meaning. If, after such
consideration, the meaning is plain and unambiguous
and does not yield absurd or unworkable results, we
shall not consider extratextual evidence of the meaning
of the statute. . . . Only if we determine that the stat-
ute is not plain and unambiguous or yields absurd or
unworkable results may we consider extratextual evi-
dence of its meaning such as the legislative history
and circumstances surrounding its enactment . . . the
legislative policy it was designed to implement . . . its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . . The test to determine ambiguity is whether the
statute, when read in context, is susceptible to more
than one reasonable interpretation.’’ (Citations omitted;
internal quotation marks omitted.) Sarrazin v. Coastal,
Inc., 311 Conn. 581, 603–604, 89 A.3d 841 (2014); see
also Forest Watch v. United States Forest Service, 410
F.3d 115, 117 (2d Cir. 2005) (applying plain meaning
rule to interpretation of federal regulation); Gianetti v.
Norwalk Hospital, 211 Conn. 51, 60, 557 A.2d 1249
(1989) (interpreting ‘‘agency regulations in accordance
with accepted rules of statutory construction’’); 1A N.
Singer & J. Singer, Sutherland Statutory Construction
(7th Ed. 2009) § 31:6, pp. 698–99 (observing that rules
of statutory construction also govern interpretation of
administrative regulations).
The National Flood Insurance Program provides dis-
tinct administrative mechanisms, known as LOMAs and
LOMRs, to correct alleged inaccuracies on flood insur-
ance rate maps. A LOMA is an administrative procedure
intended to provide recourse to the ‘‘owner or lessee
of property who believes his property has been inadver-
tently included’’ in a special flood hazard area or regula-
tory floodway when there has not been ‘‘any alteration
of topography . . . .’’ 44 C.F.R. § 70.1. That procedure
permits such an owner or lessee to ‘‘submit scientific
or technical information’’ to FEMA, which is required
to review that information and notify the applicant of
its decision within sixty days. 44 C.F.R. §§ 70.3–70.4.
When FEMA determines that a particular property has
been inadvertently included in a special flood hazard
area or regulatory floodway, it issues a LOMA that speci-
fies (1) the name of the municipality in which the prop-
erty lies, (2) the number of the erroneous flood insur-
ance rate map, and (3) the identification of the property
to be excluded from the previous designation. 44 C.F.R.
§ 70.5. FEMA then distributes copies of the LOMA to
various entities and publishes notice in the Federal
Register when a change of base flood elevations has
occurred. 44 C.F.R. §§ 70.6–70.7. LOMAs thus exist to
‘‘correct the inadvertent inclusion of properties in the
regulatory floodway depicted on a [flood insurance rate
map].’’ Coalition for a Sustainable Delta v. Federal
Emergency Management Agency, 812 F. Supp. 2d 1089,
1124 (E.D. Cal. 2011).
By contrast, a request for a LOMR is ‘‘based on pro-
posed or actual manmade alterations within the flood-
plain, such as the placement of fill; modification of a
channel; construction or modification of a bridge, cul-
vert, levee, or similar measure; or construction of single
or multiple residential or commercial structures on sin-
gle or multiple lots.’’ 44 C.F.R. § 72.1. The code defines
a LOMR in relevant part as ‘‘FEMA’s modification to
an effective Flood Insurance Rate Map . . . . LOMRs
are generally based on the implementation of physical
measures that affect the hydrologic or hydraulic charac-
teristics of a flooding source and thus result in the
modification of the existing regulatory floodway, the
effective base flood elevations, or the [special flood
hazard area]. . . .’’ 44 C.F.R. § 72.2. Unlike a LOMA,
which is an official notice that a particular property
should not be included in a special flood hazard area
or regulatory floodway, the issuance of a LOMR by
FEMA results in an official revision to the flood insur-
ance rate map itself. Id. The plaintiffs’ mandamus action
concerns the defendant’s alleged duty to file a LOMR
application on their behalf pursuant to 44 C.F.R. §§ 65.3
and 65.7.
1
In their principal appellate brief, the plaintiffs con-
tend that the defendant owed them a duty to ‘‘to initiate
the LOMR process, as is mandated under 44 C.F.R.
§ 65.3.’’ (Footnote omitted.) By its plain language, § 65.3
concerns physical changes to property. It provides: ‘‘A
community’s base flood elevations may increase or
decrease resulting from physical changes affecting
flooding conditions. As soon as practicable, but not
later than six months after the date such information
becomes available, a community shall notify the
Administrator of the changes by submitting technical
or scientific data in accordance with this part. Such a
submission is necessary so that upon confirmation of
those physical changes affecting flooding conditions,
risk premium rates and flood plain management require-
ments will be based upon current data.’’ (Emphasis
added.) Section 65.3, therefore, plainly and unambigu-
ously applies to situations involving physical changes
affecting flooding conditions.
In the present case, it is undisputed that no physical
change affecting flooding conditions has occurred with
respect to the plaintiffs’ property. Their claim, as memo-
rialized in the operative complaint and Wozniak’s July
14, 2017 affidavit, is that Judd Brook has been improp-
erly depicted on a portion of their property since the
map first was promulgated. See part II A of this opinion.
The plaintiffs have made no factual allegation that their
property has undergone any physical change or that
it has been affected by a physical change to another
property. Absent such allegations, the plaintiffs’ claim
that the defendant had a duty under 44 C.F.R. § 65.3 to
file a LOMR application on their behalf is untenable.
Because § 65.3 applies only when there are ‘‘physical
changes affecting flooding conditions,’’ there is no genu-
ine issue of material fact regarding its inapplicability
to the present case, in which the sole issue raised by
the plaintiffs is the incorrect depiction of Judd Brook
on their property.
Perhaps cognizant of that shortcoming, the plaintiffs
have attempted to inject new factual allegations into
the case for the first time on appeal. They allege in their
principal appellate brief that the trial court’s analysis
‘‘ignores entirely the fact that the relocation and under-
ground piping of Judd Brook on the [adjacent] parcel
changed the character of the floodway, which precipi-
tated a change to the flow rate of the floodway, and has
altered the floodplain, in which the plaintiffs’ property
is located.’’ (Emphasis omitted.) The plaintiffs further
allege that ‘‘the flooding on the [adjacent] parcel was
caused by the removal of the dam for the Hayward
Pond up-stream therefrom. The pond was a holding
pond that flooded the area upstream. Removing it
caused flooding downstream.’’ Neither the operative
complaint nor Wozniak’s July 14, 2017 affidavit contains
those allegations. Such allegations are patently
improper, having never been raised in the pleadings
before the trial court.12 We therefore decline to consider
them. See, e.g., Schoonmaker v. Lawrence Brunoli, Inc.,
265 Conn. 210, 249 n.46, 828 A.2d 64 (2003) (declining
to consider claims raised for first time on appeal
‘‘because the plaintiffs never properly raised them in
the trial court by pleading them in their complaint’’);
Link v. Shelton, 186 Conn. 623, 628, 443 A.2d 902 (1982)
(‘‘new facts alleged . . . for the first time on appeal’’
improper because they ‘‘were not part of the pleadings
or affidavits below’’); Stevens v. Helming, 163 Conn.
App. 241, 246–48, 135 A.3d 728 (2016) (observing that
‘‘[i]n ruling on the defendants’ motion for summary
judgment, the court could consider only the facts
alleged in the pleadings’’ and emphasizing that ‘‘[s]imple
fairness requires that a defendant not be forced to
defend against facts that are not clearly pleaded in
a complaint’’).
2
The plaintiffs also allege that 44 C.F.R. § 65.7 imposes
a ministerial duty on the defendant to file a LOMR to
correct the inaccurate depiction of Judd Brook on their
property. We disagree.
Titled ‘‘Floodway revisions,’’ 44 C.F.R. § 65.7 (a) pro-
vides in relevant part: ‘‘Floodway data is developed as
part of FEMA Flood Insurance Studies and is utilized
by communities to select and adopt floodways as part
of the flood plain management program . . . . When
it has been determined by a community that no practica-
ble alternatives exist to revising the boundaries of its
previously adopted floodway, the procedures below
shall be followed. . . .’’ The section then proceeds to
outline certain data and certification requirements, as
well as the submission procedure for revision requests.
A prerequisite to the extraordinary relief afforded by
a writ of mandamus is the existence of a duty that is
ministerial in nature. As our Supreme Court has
explained, ‘‘[i]t is axiomatic that [t]he duty [that a writ
of mandamus] compels must be a ministerial one; the
writ will not lie to compel the performance of a duty
which is discretionary. . . . Consequently, a writ of
mandamus will lie only to direct performance of a minis-
terial act which requires no exercise of a public officer’s
judgment or discretion. . . . Discretion is determined
from the nature of the act or thing to be done . . . .’’
(Citations omitted; internal quotation marks omitted.)
AvalonBay Communities, Inc. v. Sewer Commission,
supra, 270 Conn. 422.
Here, the act or thing to be done is the determination
by a community that ‘‘no practicable alternatives exist’’
to revising the boundaries of a previously adopted flood-
way. The act of determining whether any ‘‘practicable
alternatives exist’’ is a quintessentially discretionary
function, as it requires a community to exercise its
judgment as to whether alternatives to revising such
boundaries are practical in nature. As but one example,
a community such as the defendant might reasonably
conclude that the detailed study of Judd Brook that
FEMA is conducting as part of the Risk MAP program
in the lower Connecticut watershed is a practical alter-
native to the submission of a LOMR application pursu-
ant to 44 C.F.R. § 65.7. Because § 65.7 imparts discretion
on participating communities to evaluate whether any
practical alternatives exist, we disagree with the plain-
tiffs that it is ministerial in nature.
We also are mindful that individual regulations are
not to be construed in isolation, but rather in light of
the entire act. See Historic District Commission v.
Hall, supra, 282 Conn. 684. The code expressly indicates
that requests for LOMRs are predicated on ‘‘proposed
or actual manmade alterations within the floodplain’’;
44 C.F.R. § 72.1; and are ‘‘based on the implementation
of physical measures that affect the hydrologic or
hydraulic characteristics of a flooding source and thus
result in the modification of the existing regulatory
floodway, the effective base flood elevations, or the
[special flood hazard area]. . . .’’ (Emphasis added.)
44 C.F.R. § 72.2. Section 65.7, in turn, plainly and unam-
biguously concerns ‘‘changes’’ to floodways. See 44
C.F.R. § 65.7 (b) (‘‘[d]ata requirements when base flood
elevation changes are requested’’); 44 C.F.R. § 65.7 (c)
(‘‘[d]ata requirements for changes not associated with
base flood elevation changes’’); 44 C.F.R. § 65.7 (e)
(‘‘[a]ll requests that involve changes to floodways shall
be submitted to the appropriate FEMA Regional
Office’’). As discussed in part II B 1 of this opinion, the
plaintiffs have not alleged any manmade alterations or
physical changes affecting their property or the designa-
tion thereof in their operative complaint. Their claim
is that Judd Brook has been incorrectly depicted on
their property since the flood insurance rate map for
the area first was promulgated. Accordingly, 44 C.F.R.
§ 65.7 is inapposite to the present case. We therefore
conclude that no genuine issue of material fact exists
as to whether the defendant had a ministerial duty to
file a LOMR application on behalf of the plaintiffs in
the present case.
III
The plaintiffs’ claim suffers a further infirmity. To
obtain a writ of mandamus, the plaintiffs also must
demonstrate that they have no adequate remedy at law.
Stewart v. Watertown, supra, 303 Conn. 711–12. The
plaintiffs have neither alleged in their operative com-
plaint nor provided any evidence that property owners
are precluded from filing LOMR applications with
FEMA.
A review of the regulatory scheme governing the
LOMR application process indicates otherwise. Part 72
of the National Flood Insurance Program sets forth
the procedures that govern LOMR applications. See 44
C.F.R. § 72.1. Section 72.4 of chapter 44 of the code
specifies submittal and payment procedures for LOMR
applications. In particular, § 72.4 (e) provides: ‘‘The
entity that applies to FEMA through the local commu-
nity for review is responsible for the cost of the review.
The local community incurs no financial obligation
under the reimbursement procedures of this part when
another party sends the application to FEMA.’’13
(Emphasis added.) Thus, the National Flood Insurance
Program plainly envisions the filing of LOMR applica-
tions by parties other than local communities such as
the defendant. In such instances, it is that other party—
and not the local community—that bears the financial
burden that accompanies the filing of a LOMR appli-
cation.
The instructions provided by FEMA for completing
LOMR applications, which the defendant submitted in
support of its motion for summary judgment, further
demonstrate that property owners are permitted to file
LOMR applications. FEMA’s ‘‘Instructions for Complet-
ing the Application Forms for Conditional Letters of
Map Revision and Letters of Map Revision’’ state in
relevant part that ‘‘[s]ubmissions to [FEMA] for revi-
sions to . . . [f]lood [i]nsurance [r]ate [m]aps . . . by
individual and community requesters will require the
signing of application forms.’’ (Emphasis added.) Those
instructions explain that LOMR applications must
include the submission of a ‘‘concurrence form’’ that
‘‘requires the signatures of the requester, community
official, and engineer.’’ As the instructions expressly
indicate, the manifest purpose of the concurrence form
is to ‘‘ensure that the community is aware of the impacts
of the [LOMR] request . . . .’’ For that reason, the instruc-
tions require the concurrence form to be signed by both
the ‘‘[r]evision [r]equester’’14 and ‘‘the [chief executive
officer] for the community involved in [the requested]
revision . . . .’’ The requirement that an applicant
seeking a LOMR obtain the concurrence of the commu-
nity in which the property in question resides is further
evidence that the National Flood Insurance Program
envisions applicants other than local communities.
The case law from various jurisdictions is replete with
examples in which individual property owners have
applied for, and obtained, LOMRs from FEMA. See,
e.g., McCrory v. Administrator of Federal Emergency
Management Agency, 22 F. Supp. 3d 279, 284–85
(S.D.N.Y. 2014) (noting that LOMRs exist to permit
‘‘individuals, organizations and municipalities to
request a localized update’’ to flood insurance rate maps
and stating that individual property owners in that case
‘‘applied for the LOMR’’ and ‘‘FEMA approved the appli-
cation’’), aff’d, 600 Fed. Appx. 807 (2d Cir. 2015);
National Wildlife Federation v. Federal Emergency
Management Agency, supra, 2014 WL 5449859 *16
(explaining that ‘‘property owners’’ may ‘‘apply for a
LOMR from FEMA’’); Somers Mill Associates, Inc. v.
Fuss & O’Neill, Inc., Superior Court, judicial district of
New Britain, Docket No. X03-CV-XX-XXXXXXX (March 7,
2002) (noting that FEMA issued LOMR to resolve dis-
crepancy in flood insurance rate map in response to ‘‘a
request initiated’’ by plaintiff property owners), aff’d
sub nom. Ahearn v. Fuss & O’Neill, Inc., 78 Conn. App.
202, 826 A.2d 1224, cert. denied, 266 Conn. 903, 832
A.2d 64 (2003); Samuel’s Furniture, Inc. v. Washington
Dept. of Ecology, 147 Wash. 2d 440, 446, 54 P.3d 1194 (2002)
(‘‘Although the [local municipality] believed that the
project was not within the shoreline jurisdiction, it sug-
gested that [the plaintiff property owner] obtain a
[LOMR] from FEMA to remove the portion of [the plain-
tiff’s] property at issue from the FEMA floodway desig-
nation. [The individual property owner] sought and
obtained the LOMR, thus removing the property from
the FEMA floodway.’’). In addition, the record before
us contains copies of correspondence between the
defendant’s First Selectman and Wozniak, in which the
First Selectman expressly indicated that the defendant
had filed concurrence forms ‘‘for other private property
LOMR applications in the past.’’ The First Selectman
further advised Wozniak that, in the event that the plain-
tiffs filed a LOMR application on their own behalf, the
defendant would provide assistance by reviewing the
application and signing a concurrence form.
The plaintiffs have presented no basis on which this
court reasonably could conclude that an individual
property owner is prohibited, as a matter of federal
administrative law, from filing a LOMR application with
FEMA. The relevant federal regulations and the materi-
als submitted in connection with the motion for sum-
mary judgment all contemplate such filings by property
owners, and the case law reflects that property owners
routinely apply for and secure LOMRs from FEMA. The
availability of that legal remedy, which would provide
the plaintiffs the very relief they seek, is fatal to their
mandamus action. See Sterner v. Saugatuck Harbor
Yacht Club, Inc., 188 Conn. 531, 534, 450 A.2d 369 (1982)
(‘‘for mandamus to lie, the plaintiff must have no other
adequate remedy’’); 55 C.J.S., Mandamus § 7 (2009)
(‘‘mandamus is used sparingly . . . and only when it
is the sole available remedy’’). We therefore conclude
that the trial court properly rendered summary judg-
ment in favor of the defendant in the present case.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to Victor A. Wozniak and Olga E.
Wozniak collectively as the plaintiffs and to Victor A. Wozniak individually
by his surname.
2
The plaintiffs also claim that the court improperly rendered summary
judgment in favor of the defendant on their inverse condemnation and
negligence claims. On appeal, the plaintiffs concede that the viability of
those claims is wholly dependent upon their mandamus claim, as they are
premised on the defendant’s alleged duty ‘‘to submit an application to correct
the flood map.’’ In light of our resolution of the plaintiffs’ principal claim,
we agree with the plaintiffs that their inverse condemnation and negligence
claims necessarily must fail. We, therefore, do not consider those claims in
any detail.
3
See 42 U.S.C. § 4001 et seq.
4
The Code of Federal Regulations (code) defines ‘‘[a]rea of special flood
hazard’’ as ‘‘the land in the flood plain within a community subject to a 1
percent or greater chance of flooding in any given year.’’ 44 C.F.R. § 59.1.
It defines ‘‘[f]lood plain or flood-prone area’’ in relevant part as ‘‘any land
area susceptible to being inundated by water from any source . . . .’’ Id.
We further note that the term ‘‘flood plain’’ is spelled as both one word
and as two words in federal authorities. See, e.g., 42 U.S.C. § 4101; 44
C.F.R. § 59.1.
5
The code defines ‘‘community’’ in relevant part as ‘‘any State or area or
political subdivision thereof . . . which has authority to adopt and enforce
flood plain management regulations for the areas within its jurisdiction.’’
44 C.F.R. § 59.1.
6
The record also indicates that, on March 27, 2012, the defendant’s First
Selectman, Gregg Schuster, signed a community acknowledgement form for
the plaintiffs’ LOMA submission.
7
In that correspondence, the FEMA official informed Wozniak that certain
‘‘forms or supporting data, which were omitted from your previous submittal,
must be provided: The metes and bounds description that was previously
submitted includes a portion of the Judd Brook. Portion of streams/brooks
cannot be removed from the Special Flood Hazard Area. Please revise the
metes and bounds area to only include land. All corrections must be certified
by a licensed land surveyor or professional engineer. If the updates to the
metes and bounds area changes the lowest lot elevation provided on the
elevation form, the form should be updated as well. If the lowest lot elevation
does not change please provide a certified letter from the surveyor or
engineer that completes the new map and description stating such. Please
note that if all of the required items are not submitted within 90 days of
the date of this letter, any subsequent request will be treated as an original
submittal and will be subject to all submittal procedures.’’ (Emphasis
omitted.)
8
More specifically, Schuster stated in relevant part: ‘‘Upon reviewing the
submitted documentation and telephone conversation with town staff with
[FEMA representative Caitlin Clifford] the following procedure is recom-
mend[ed] for a successful LOMA application.
‘‘1. The depicted limits of the flood zone should be a curvature-linear line
that shows the elevation of the floodway as the actual topography of the
site as it exists in comparison to the established floodway elevations as
determined by the FEMA mapping. This area must not encroach upon the
actual (field determined) location of Judd Brook or any back water areas
below the established flood plain elevation. It also [is] recommended that
both sides of the existing Judd Brook be more clearly defined on the submit-
ted mapping, with topographic information shown for the complete affected
area. The information must be submitted with a Licensed Land Survey-
or’s certification.
‘‘2. Once the mapping is revised, the submission to Ms. Clifford should
indicate that the information submitted involves field verified and deter-
mined topographic information and should be referred to her supervisor
that is an engineer for evaluation. This was noted in the telephone conversa-
tion with Ms. Clifford that her ‘authority’ and limits of evaluation are simply
map overlay and that sites that require determination of topographic informa-
tion are conducted at the supervisory level above her.
‘‘This should provide the most expedient process for the successful deter-
mination of your LOMA [a]pplication. Should you continue with your LOMA
application, the [defendant] would be more than happy to assist you by
giving you concurrence through the First Selectman’s Office.’’
9
The plaintiffs’ property lies north of Lebanon Avenue/State Route 16.
10
As Wozniak stated in his July 14, 2017 affidavit, ‘‘Judd Brook had been
relocated years ago such that it is not located where it is as shown on the
[map]. . . . Judd Brook to the south was rerouted by being place[d] in
[reinforced concrete] pipe but this did not affect its location on our prop-
erty.’’ (Emphasis added.)
11
As the plaintiffs note in their appellate reply brief, they ‘‘do not dispute
that the location of Judd Brook as shown on the [map] has always been
incorrect . . . .’’
12
In this regard, we note that the plaintiffs had ample opportunity to refine
their factual allegations, having filed their original complaint on March 11,
2013, their first amended complaint on May 15, 2015, and the operative
complaint—their second amended complaint—on July 21, 2015, the latter
of which was in response to a request to revise filed by the defendant.
13
Section 72.4 (h) (1) likewise obligates FEMA to ‘‘[n]otify the requester
and the community within 60 days as to the adequacy of the submittal
. . . .’’ (Emphasis added.)
14
FEMA’s ‘‘Instructions for Completing the Overview & Concurrence
Form’’ state that the revision requester ‘‘should own the property involved
in the request or have legal authority to represent a group/firm/organization
or other entity in legal actions pertaining to the [National Flood Insurance
Program].’’ (Emphasis added.)