Eric A. Federer et al. v. Inland Wetlands Commission of the Town of Washington et al. (2010)

MEMORANDUM OF DECISION

The defendant in this inland wetlands appeal has filed a motion to dismiss (# 111) this administrative appeal on the ground that the only remaining party, the intervening plaintiff, lacks standing, and thus, the court lacks jurisdiction.   For the reasons stated, the court must deny the motion to dismiss.

FACTS

On January 5, 2009, Eric A. Federer and Wendy R. Federer (the Federers) filed an amended citation and administrative appeal against the inland wetlands commission of the town of Washington (the commission), Wykeham Rise, LLC (Wykeham Rise) and Gina McCarthy, commissioner of the state department of environmental protection, as a result of the commission's November 5, 2008 approval of Wykeham Rise's permit to build an inn on property abutting the Federers' property.   On March 16, 2009, Teresa Rosen Peacocke (the intervening plaintiff) filed a motion to intervene as a party plaintiff pursuant to General Statutes §§ 22a-19(a), which the court granted on March 30, 2009.¹  On March 2, 2010, the Federers filed a withdrawal from the present action.²  As a result, the commission filed the motion to dismiss that is presently before, and on June 2, 2010, the intervening plaintiff filed an objection.³  This matter was heard at the June 15, 2010 short calendar.   At that time, the court granted the intervening plaintiff's request to file a supplemental brief, which she filed on July 2, 2010.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

In its motion to dismiss, the commission argues that its motion should be granted for three reasons.   First, the commission argues that the appeal cannot continue after the original plaintiffs have withdrawn from the action.   Specifically, the commission argues that § 22a-19 does not give the intervening plaintiff standing to maintain the appeal because her position is “wholly derivative” and dependent upon the original plaintiffs.   Second, the commission asserts that the court lacks jurisdiction over any appeal that is not commenced within the statutory time frame in General Statutes § 8-8(b), as referenced in General Statutes § 22a-43.   The commission claims that its decision was published on November 16, 2008, the deadline to file an appeal was December 1, 2008, and the intervening plaintiff did not file her appeal under March 16, 2009.   Moreover, the commission argues, § 22a-19 “does not grant to an intervenor the right to maintain and prosecute an appeal that otherwise is jurisdictionally defective.”   Finally, the commission argues that if the court allows this appeal to continue, intervening parties will have greater rights than those who have complied with the administrative appeal process.   Specifically, the commission asserts that allowing an intervening party to keep an “otherwise defunct appeal” alive would “encourage the use of strawmen and lead to other procedural abuses in an effort to avoid the purposefully short administrative appeal deadlines.”

In her objection to the motion to dismiss, the intervening plaintiff argues that the Connecticut Environmental Protection Act (the act), General Statutes §§ 22a-14 through 22a-20, supplements the administrative statutes at issue in the present matter and that the act has a broad policy goal of providing all persons with an adequate remedy to protect them.   Moreover, the intervening plaintiff argues that the act gives much broader powers to the courts than those outlined in the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189g.   Furthermore, the intervening plaintiff argues that the court retains jurisdiction over this appeal, even in light of the Federers' withdrawal, because:  1) she had the right to intervene;  2) once she became a party, the appeal could not be settled or withdrawn with the consent of all of the parties to the appeal and a hearing before the court, pursuant to General Statutes § 22a-43(d);  and 3) even if there had been a hearing under § 22a-43(d), she still would have had to consent in order for the appeal to be withdrawn.   The intervening plaintiff argues that “[i]f the withdrawal of the original plaintiffs deprived the court of jurisdiction over an inland wetlands appeal, then [the] original parties to the appeal could evade the requirements of § 22a-43(d) ․ and settle the appeal without a hearing, and without the intervenor's consent.”   In her supplemental brief, the intervening plaintiff addresses Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed. 48 (1986), which the commission cited extensively at oral argument, but did not include in its brief.

Section 22a-19(a) provides in relevant part:  “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law ․ any person ․ may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

Section 22a-43 governs appeals and provides in relevant part:  “(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district to the court ․ (d) No appeal taken under subsection (a) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and the court has approved such proposed withdrawal or settlement ․” ⁴

In the present matter, the commission and the intervening plaintiff primarily disagree about the interpretation and applicability of two cases to the present facts:  Diamond v. Charles, supra, 476 U.S. 54, and Grieco v. Redding Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 306827 (May 24, 1994, Mihalakos, J.) [11 Conn. L. Rptr. 541].   First, as to Diamond, the commission argues that it stands for the proposition that the intervening plaintiff's status is only derivative and that her standing cannot be maintained in the absence of the original plaintiffs.   The intervening plaintiff argues that Diamond has no bearing on the present matter because it does not address the statutes at issue and because the Federal Rules of Civil Procedure and the constitution of the United States, article three, do not have any bearing on a party's standing in state court.

In Diamond, a group of physicians who provided abortion services filed a class action suit against the state regarding the constitutionality of the Illinois Abortion Law of 1975.  Id., 57.   Subsequently, Eugene F. Diamond, a pediatrician in Illinois, filed a motion to intervene as a party defendant and asked to be appointed guardian ad litem for fetuses surviving abortion on the grounds that he was conscientiously opposed to abortions, and he was a pediatrician and father to a minor, unemancipated daughter.  Id., 58.   The district court granted Diamond's motion to intervene but it did “not indicate whether the intervention was permissive or as of right, and it did not describe how Diamond's interests in the litigation satisfied the requirements of Federal Rule of Civil Procedure 24 for intervenor status.”  Id. Ultimately, the district court permanently enjoined certain sections of the abortion law, which the applicable court of appeals affirmed.  Id., 61.   Although the state chose not to appeal the permanent injunction, Diamond filed a notice of appeal and a jurisdictional statement to the United States Supreme Court.  Id.

One of the issues before the Court was whether Diamond had standing to bring the appeal on his own, without the state as a fellow appellant.   The Court reasoned:  “Diamond's status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this appeal.   Although intervenors are considered parties entitled, among other things, to seek review by this Court ․ an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.

“This Court has recognized that certain public concerns may constitute an adequate interest within the meaning of Federal Rule of Civil Procedure 24(a)(2) ․ and has held that an interest under Rule 24(a)(2), which provides for intervention as of right, requires a significantly protectable interest ․ However, the precise relationship between the interest required to satisfy the Rule and the interest required to confer standing, has led to anomalous decisions in the Court of Appeals.   We need not decide today whether a party seeking to intervene before a district court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III. To continue this suit in the absence of Illinois, Diamond himself must satisfy the requirements of Art. III. The interests of Diamond asserted before the District Court in seeking to intervene plainly are insufficient to confer standing on him to continue this suit now.”  (Citations omitted;  internal quotation marks omitted.)  Id., 68-69.

The court agrees with the intervening plaintiff that Diamond has little applicability to the present facts.   The Federal Rules of Civil Procedure are inapplicable to the present matter, and standing under the constitution of the United States, article three, is separate and distinct from standing in Connecticut state courts.   See Morascini v. Commission of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV 91 0392693 (December 20, 1991, Walsh, J.) [5 Conn. L. Rptr. 375] (“The parties' reliance on the standing requirements of federal courts is misplaced, and ․ a party need not prove article III standing to bring suit in the Superior Court of the State of Connecticut.   See Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 65, 441 A.2d 68 (1981)”).   Moreover, even the procedural posture of Diamond is distinguishable from the present facts.   Diamond, the intervening defendant, did not have standing to bring the case in part because the state, the original defendant, did not join him in an appeal to the United States Supreme Court.   In the present matter, the intervening plaintiff became involved in the appeal as a result of § 22a-19(a), after the Federers had already filed a timely appeal to this court.   For all of these reasons, the court is unpersuaded that Diamond has any applicability to the present matter.

The court also concludes that another case upon which the commission relies, Grieco v. Redding Zoning Commission, supra, Docket No. CV 306827, is distinguishable from the present matter.   In Grieco, “[t]he primary issue raised by the movant [was]:  Where an intervenor, pursuant to ․ General Statutes [§ ]22a-19, intervenes at the trial court level and the underlying action in which the intervenor intervened is subsequently dismissed by the trial court because of lack of standing, must the intervenor's action also be dismissed?”  Id. At the outset, the court noted that “a party does not lack standing to appeal under [§ ]22a-19(a) because intervention does not occur at the administrative level.”   Additionally, the court noted that “a party can satisfy [§ 22a-19(a) by joining an appeal at the Superior Court level.”   Id. In concluding that the intervenor lacked standing, however, the court cited other case law that provided:  “The intervenor's posture is derivative.   [H]e assumes his role only by virtue of an action already shaped by the original parties.   He must, therefore, take his own controversy as he finds it and may not use his own claims to restyle or resuscitate their action.”   (Internal quotation marks omitted.)  Id. “In ․ [§ ] 22a-19, the [intervenor] enjoy[s] a statutory right to intervene.   Although [the intervenor's] rights are not derivative, [his] posture is derivative ․ [T]he plain language of the statute, which in part states, ‘[i]n any administrative ․ and in any judicial review ․ any person ․ may intervene,’ indicates to the court that any person can intervene in a pending action.   Currently, there is no administrative or judicial review pending in which to intervene.  Id. As a result, the court granted the motion to dismiss.

Grieco is distinguishable from the present matter for several reasons.   In Grieco, the intervening plaintiff could not survive the motion to dismiss because there was no administrative or judicial review pending in which to intervene since the original plaintiff lacked standing.   In the present matter, the Federers' standing was never in dispute.   Thus, when the intervening plaintiff filed her motion, there was a pending action in which she could join.   Although her posture was derived from the Federers when she intervened, her rights are not derivative of the Federers, as the court noted in Grieco.   Therefore, although the intervening plaintiff was able to join the action because of the Federers and the fact that they filed a timely appeal, the intervening plaintiff is now a party to the case and has her own rights.   The court does not read the applicable statutes or Grieco to mean that the intervening plaintiff, who has properly intervened in the case, no longer has the right to move forward with this appeal simply because the Federers withdrew from the appeal as plaintiffs.⁵

As to its second argument, the commission concedes that the intervening plaintiff had a right to join the case when she did, but then argues that the intervening plaintiff fails to meet all of the filing deadlines to bring this appeal.   The applicable statutes do not require the intervening party to file a timely appeal.   Rather, the applicable statutes only require the filing of a timely appeal.   In this case a timely appeal was filed, it just happened to have been filed by the Federers, who are no longer plaintiffs.   While the intervening plaintiff would have been unable to bring this appeal without the Federers' timely appeal, the court is unpersuaded that the applicable statutes require the intervening plaintiff's timely appeal in the absence of the original parties.   Moreover, the court is unpersuaded that allowing the intervening plaintiff to maintain this action will lead to widespread abuses and the use of strawmen to circumvent the appeal requirements.

For all of these reasons, the court denies the commission's motion to dismiss the administrative appeal for lack of standing.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. In her motion to intervene, the intervening plaintiff states that her address is 8-14 Bell Hill Road, Washington, Connecticut.   The amended administrative appeal provides that the Federers own real property at 27 Bell Hill Road, Washington, Connecticut..  FN1. In her motion to intervene, the intervening plaintiff states that her address is 8-14 Bell Hill Road, Washington, Connecticut.   The amended administrative appeal provides that the Federers own real property at 27 Bell Hill Road, Washington, Connecticut.

FN2. Prior to filing withdrawal form JD-CV-41, the Federers filed a motion to withdraw..  FN2. Prior to filing withdrawal form JD-CV-41, the Federers filed a motion to withdraw.

FN3. The commission filed its original motion (# 110) on May 14, 2010, and it filed a corrected motion to dismiss (# 111) on the same day..  FN3. The commission filed its original motion (# 110) on May 14, 2010, and it filed a corrected motion to dismiss (# 111) on the same day.

FN4. General Statutes § 8-8(b) provides in relevant part:  “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6.   The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”.  FN4. General Statutes § 8-8(b) provides in relevant part:  “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6.   The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

FN5. There is some dispute as to whether the Federers withdrew as plaintiffs or whether they withdrew their appeal.   In its brief, the commission suggests that the Federers withdrew their appeal.   Although the Federers cited Practice Book § 14-7A and General Statutes § 22a-43(d) in their motion to withdraw, both of which reference the withdrawal of administrative appeals, the court is unpersuaded that the Federers actually withdrew the present appeal.   The Federers' own motion to withdraw supports this conclusion:  “This motion does not apply to ․ [the intervening plaintiff] ․ and, accordingly, the granting of this motion will not end this administrative appeal.”   Additionally, the withdrawal form that the Federers filed with the court simply states that the Federers withdrew as plaintiffs, even though the form provides options to withdraw the complaint or something labeled “other.”.  FN5. There is some dispute as to whether the Federers withdrew as plaintiffs or whether they withdrew their appeal.   In its brief, the commission suggests that the Federers withdrew their appeal.   Although the Federers cited Practice Book § 14-7A and General Statutes § 22a-43(d) in their motion to withdraw, both of which reference the withdrawal of administrative appeals, the court is unpersuaded that the Federers actually withdrew the present appeal.   The Federers' own motion to withdraw supports this conclusion:  “This motion does not apply to ․ [the intervening plaintiff] ․ and, accordingly, the granting of this motion will not end this administrative appeal.”   Additionally, the withdrawal form that the Federers filed with the court simply states that the Federers withdrew as plaintiffs, even though the form provides options to withdraw the complaint or something labeled “other.”

Pickard, John W., J.