Thomas Sanders v. Montville Inland Wetlands and Watercourse Commission (2010)

ORDER RE MOTION # 104

On March 16, 2010, the defendant, the Town of Montville Inland Wetlands and Watercourses Commission,¹ filed a motion to dismiss and a memorandum in support.   On April 5, 2010, the plaintiff, Thomas E. Sanders, filed an objection to the motion and a memorandum in opposition.

This action is an appeal of a decision by the defendant that driveway maintenance performed by the plaintiff was not an activity permitted as of right pursuant to General Statutes § 22a-40(a)(4) and Section 4.1(d) of the Montville Inland Wetlands and Watercourses Regulations.   The plaintiff alleges that the defendant made its determination on November 20, 2008.   The plaintiff subsequently filed this action on December 17, 2008.   The plaintiff's appeal alleges facts with respect to the work completed by the plaintiff and the cease and desist order issued by the defendant.

The defendant argues that this action is moot because on or about December 8, 2008, the plaintiff submitted an application for a permit to conduct the maintenance work.   The defendant asserts that it accepted the plaintiff's permit at its December 18, 2008 meeting, and on April 16, 2009, it approved the application and issued a permit to the plaintiff for the work that was completed.   The defendant recites the same facts with respect to the permit in his memorandum in opposition.   Neither party, however, attached any evidence to their respective filing.

“The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).   Currently, the court is limited to considering the facts alleged in the plaintiff's appeal, which address only the work completed by the plaintiff and the cease and desist order issued by the defendant.   Although the parties appear to agree on the facts with respect to the permit, neither party has submitted evidence that allows the court to consider those facts.

The parties are hereby ordered to submit evidence, in accordance with Practice Book § 10-31, with respect to the issue of the permit.   If the evidence discloses that no genuine issue as to a material fact exists, the court will consider the content to determine the motion to dismiss.

The Court

Cosgrove, J.

FOOTNOTES

FN1. The Commission is one of four named defendants in this action.   The Commission alone has filed the motion to dismiss;  accordingly, the Commission will be referred to singularly as “the defendant” hereinafter..  FN1. The Commission is one of four named defendants in this action.   The Commission alone has filed the motion to dismiss;  accordingly, the Commission will be referred to singularly as “the defendant” hereinafter.

Cosgrove, Emmet L., J.