MSW LLC v. City of Danbury et al. (2011)

RULING ON MOTION TO DISMISS (# 107.00)

The plaintiffs, MSW Associates, LLC and Putnam Properties, LLC, commenced this action against the defendants, City of Danbury, Planning Commission of the City of Danbury and the Zoning Commission of the City of Danbury on January 18, 2011.

On or about September 25, 2007, the plaintiffs filed an application with the City of Danbury Planning Commission seeking a special exception and site plan approvals to operate a solid waste transfer station on property located in Danbury and known as 14 and 16 Plumtrees Road. Putnam Properties is the owner of the properties and MSW is the owner and operator of the proposed solid waste facility.   Subsequent to the filing of the application, in October 2007, the defendant Zoning Commission for the City of Danbury amended its regulations to eliminate the transfer station use from the uses permitted in the zone in which the plaintiffs' property is located.   Accordingly, on April 2, 2008, the Planning Commission rendered a decision denying the plaintiffs' application.   Following the denial, the plaintiffs took an administrative appeal with this court, seeking a reversal of the decision of the Planning Commission.   That appeal remains pending as docket number DBD–CV–08–4008817–S.   At a status conference in that matter, the plaintiffs suggested to the court that the Planning Commission's right to regulate the development of the plaintiffs' property as a solid waste facility had been preempted by General Statutes §§ 22a–208, 22a–208a and 22a–208b, and that pursuant to such statutes, control was vested solely in the Department of Environmental Protection.   The plaintiffs requested a continuance of that appeal so that they could include a claim in the alternative seeking a declaratory judgment regarding the issue of preemption.   On January 13, 2011, the plaintiffs filed an amended complaint in the administrative appeal which added the claim for declaratory relief.   At that same time, the plaintiffs served a summons and complaint in a separate action for declaratory judgment which is the subject of the instant case.

On March 7, 2011, the defendants filed a motion to dismiss asserting that the court has no subject matter jurisdiction because the plaintiffs lack the requisite standing and the matter is not ripe for adjudication.

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

In the present case, the plaintiffs are seeking a declaratory judgment.   Nonetheless, “[a] declaratory judgment action is not ․ a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies.”  (Citation omitted;  internal quotation marks omitted.)   Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003).  “A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).  “[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.”  (Internal quotation marks omitted.)   Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010).

The defendants argue that because the plaintiffs have never applied for or secured any permit under § 22a–207 et seq., they lack standing to seek the relief demanded and the claim is not justiciable because the matter is not ripe for adjudication.   In response, the plaintiffs contend that they have alleged sufficient facts to establish that they have been “classically aggrieved” and thus have satisfied the requirements to establish standing to bring this cause of action, and that the facts establish ripeness sufficient to meet the requirements of justiciability.

I

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).”  (Internal quotation marks omitted.)  Wilcox v. Webster, supra, 294 Conn. 213.  “The proper procedural vehicle for disputing a party's standing is a motion to dismiss.”  (Internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005).

In the present case, the plaintiffs assert that they have standing based on common-law principles because they have been classically aggrieved.  “Whether a party has been classically aggrieved is examined on a case-by-case basis, and requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected ․” (Citations omitted;  internal quotation marks omitted.)   Dean v. Jepsen, Superior Court, judicial district of Hartford, Docket No. CV 10 6015774 (November 3, 2010, Aurigemma, J.) [51 Conn. L. Rptr. 111] citing to Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

With regard to the first prong:  “[a] [plaintiff's] status as owner of ․ property establishes that she has a specific personal and legal interest in the subject matter of the decision.”  (Internal quotation marks omitted.)  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).   Next, with regard to the second prong of classical aggrievement for purposes of standing, the case of Bombero v. Planning and Zoning Commission of Trumbull, 40 Conn.App. 75, 669 A.2d 598 (1996) is instructive.   There, the plaintiff sought declaratory relief claiming that the regulation was unconstitutionally vague and thus rendered his property rights uncertain.   Although the plaintiff had not applied to subdivide his land, the court nevertheless concluded that his interest in the statute was sufficient to convey standing for the purpose of seeking declaratory relief.   The court noted that our Supreme Court has allowed declaratory judgment actions challenging the constitutionality of a statute even where the plaintiff has not first applied for relief under the challenged statute.   See id., citing Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979);  Karen v. East Haddam, 146 Conn. 720, 725, 155 A.2d 921 (1959).   The court concluded that the “fundamental requirement” for attacking the constitutionality of legislation is that “the plaintiff must demonstrate that his interests are adversely affected in that a legal or equitable interest is uncertain or in danger of loss.”  Bombero v. Planning & Zoning Commission of Trumbull, supra, 82.   Applying the rule to the circumstances of that case, the Bombero court determined that the plaintiff was adversely affected by the zoning regulation because he owned property subject to the regulation and his use of that property was rendered uncertain by the regulation's enactment.   The court stated, “[a]s an owner of property that has the potential for subdivision, the plaintiff is entitled to be able to ascertain with reasonable certainty the validity of the adopted regulation and its effect on his rights as a property owner.”  Id., at 88.

In the present case, the plaintiff, Putnam Properties, owns the property which is within the purview of the zoning regulations at issue and the plaintiff MSW is the owner and operator of the proposed solid waste facility to be located on the property.   The plaintiffs have demonstrated a specific personal and legal interest.   Furthermore, the plaintiffs' interest has been specially and injuriously affected by the defendants' assumption of jurisdiction, and exercise of regulatory control, over the plaintiffs' activities to deny them the ability to operate a solid waste facility.   The court finds that the plaintiffs have standing.

II

“[R]ipeness is a sine qua non of justiciability ․ An issue regarding justiciability ․ must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction ․ If it becomes apparent to the court that such jurisdiction is lacking, the [cause] must be dismissed.”  (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).   A trial court properly grants a motion to dismiss if it determines that the cause of action is “unripe for adjudication.”  Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008).  “[T]he rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ․ Thus, a court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 122 Conn.App. 438, 442, 998 A.2d 838 (2010) citing to Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003).

“Our Supreme Court has consistently held that our courts may not render advisory opinions ․ Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone ․ Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ․ Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.”  (Citations omitted;  internal quotation marks omitted.)   Cumberland Farms, Inc. v. Groton, 46 Conn.App. 514, 517, 699 A.2d 310 (1997), rev'd on other grounds, 247 Conn. 196, 719 A.2d 465 (1998), rev'd, 262 Conn. 45, 808 A.2d 1107 (2002).   See George v. Watertown, 85 Conn.App. 606, 612–13 (2004).

The court finds that the requirements have been met by the plaintiff.   In the present case, the issues before the court are not hypothetical and the interests of the parties are adverse.   Resolution would determine the rights and future actions of all parties involved.   The plaintiffs need to know whether the regulatory scheme set up by the defendants is binding upon the plaintiffs and whether or not the plaintiffs need to submit applications for present and future transfer stations and volume reduction facilities to the defendants land use commissions.   Contrary to the position set forth by the defendants, the plaintiffs need not have applied for or secured a permit under § 22a–207 et seq. for this controversy to be ripe for adjudication.   The seminal event which makes this controversy ripe and justiciable is the same as that which conferred standing in the plaintiffs, i.e., the defendants' assumption of jurisdiction, and exercise of regulatory control, over the plaintiffs' activities to deny them the ability to operate a solid waste facility.   For the foregoing reasons, the defendants' motion to dismiss is DENIED.

Michael G. Maronich, Judge

Maronich, Michael G., J.