Stephen Zide et al. v. Karen Sadik–Kahn et al. (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS # 117

In this case the plaintiffs' have filed a motion to dismiss count four of the amended counterclaim on the ground that the defendants do not have standing to bring a cause of action under General Statutes § 22a–16.

This case arises out of a dispute over a proposed pier to be built across a beach owned by the plaintiffs, Stephen and Janet Zide. The defendants,¹ Karen Sadik–Kahn, Reynolds Girdler, Jr., Reynolds Girdler, Jr. as trustee for the Reynolds Girdler, Jr. Personal Residence Trust and Jean Girdler, have asserted that the proposed pier violates both a restrictive covenant and an easement on the property.   On December 8, 2010, the plaintiffs, Stephen and Janet Zide, filed suit seeking a declaratory judgment to resolve the rights of all parties and allow the permitting process for the proposed pier to go forward.   On February 10, 2011, the defendants filed an answer and counterclaim.   After several amendments to the counterclaim, the defendants, on June 10, 2011, filed the operative amended counterclaim.   The counterclaim seeks injunctive relief on four grounds:  (1) under the restrictive covenant, (2) under the “first Girdler easement,” (3) under the “second Girdler easement,” and (4) pursuant to General Statutes §§ 22a–16 and 22a–18.   On November 7, 2011, the plaintiffs filed this motion to dismiss the fourth count of the counterclaim.   In the operative counterclaim and the affidavits which oppose this motion to dismiss, the defendants allege the following facts:

In 2007, the plaintiffs applied to the Department of Energy and Environmental Protection of the State of Connecticut (DEP) for “permission to construct a pier, ramp and dock” on the property at issue (the proposed pier).   In March 2010, the DEP published notice of the proposed pier, and invited public comment.   The defendants wrote to the DEP, through their attorney, to oppose the proposed pier on the grounds that it would violate a restrictive covenant in the deed, as well as two easements on the property.   The DEP informed the plaintiffs that until the validity of the restrictive covenant and the easements is resolved, the DEP will not approve the proposed pier.   Sometime thereafter, the plaintiffs voluntarily withdrew their request for permission to construct the proposed pier.   The DEP also acknowledged that their jurisdiction only covered the portion of the proposed pier which is seaward of the mean high tide line, and that the landward portion of the proposed pier will require permission from the relevant zoning authority.   At no time did the plaintiffs seek permission from the Planning and Zoning Commission of the Town of Greenwich for “Coastal Site Plan review and approval of their plans to construct the [proposed pier].”

If the plaintiffs are permitted to construct the proposed pier, “the construction process, including the drilling and debris created thereby, would degrade the water quality of Long Island Sound and adversely affect the defendants and persons swimming at the beach located on [the] property, as well as finfish, crustacean and/or shellfish.”   Constructing the proposed pier would also, “increase the hazard of coastal flooding through significant alteration of shoreline configurations or bathymetry, degrade visual quality through significant alteration of the natural features of vistas and viewpoints and/or degrade tidal wetlands, the beach located on [the] property and rocky shorefronts through significant alteration of their natural characteristics or function.”   The proposed pier would also adversely affect “the quantity and quality of sunlight [under the pier], to the detriment of finfish, crustacean and/or shellfish, and [impede] persons swimming at the beach.”   Lastly, the proposed pier would “be used to facilitate the use of the plaintiffs' gasoline-powered boat(s) in close proximity to the beach on [the] property, thereby impeding the defendants' use and enjoyment of the beach on [the] property, endangering swimmers with collision, injury by wake and/or pollution by discharge of petroleum product in the water.”

On November 7, 2011, the plaintiffs filed a motion to dismiss the fourth count of the counterclaim on the ground that the court lacks subject matter jurisdiction.   Specifically, the plaintiffs contend that the defendants lack standing to bring the claim and the defendants do not state a colorable claim of unreasonable pollution.   The plaintiffs filed a memorandum of law and an affidavit in support of the motion.   On December 14, 2011, the defendants filed a memorandum of law and two affidavits in opposition.   The matter was heard at short calendar on December 19, 2011.   The parties filed a joint stipulation waiving the 120–day time limit imposed by Practice Book § 1149 through May 18, 2012.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the [claimant] 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).  “The motion to dismiss shall be used to assert (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.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”  Practice Book § 10–31(a).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[T]he [claimant] bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “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 Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

The plaintiffs' argument in support of the motion to dismiss is that the defendants lack standing under § 22a–16.   The plaintiffs argue that the defendants lack standing because of the “exclusive domain doctrine” which holds that § 22a–16 does not confer standing to “challenge the validity of a permit process governed by another statute.”   The plaintiffs further argue the defendants allegations are “pure permitting claims,” and that § 22a–16 does not confer standing to challenge “pure permitting claims.”   Finally, the plaintiffs argue that the defendants do not make a colorable claim of unreasonable pollution as required to establish standing under § 22a–16.   The defendants counter that the “exclusive domain doctrine” was expressly overruled by the Connecticut Supreme Court, and that even if the doctrine still existed, the proposed pier is not within the exclusive domain of the DEP because the portions of the proposal which are landward of the mean high tide line are outside of the DEP's jurisdiction.   The defendants further counter that the claims allege substantive pollution, not procedural or technical defects in the permitting process, and, accordingly, the claims alleged are not “pure permitting claims.”   The defendants also counter that as no permit has actually been approved, and, in fact, permission to construct the proposed pier has not been sought from the relevant planning and zoning commission.   Accordingly, the defendants counter that the claims alleged cannot be “pure permitting claims.”   Finally, the defendants counter that the allegations do state a colorable claim of unreasonable pollution as required to establish standing under § 22a–16.

“It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).   Where subject matter “[j]urisdiction [is] possible jurisdiction [is] taken—every presumption supports the judgment.”  Stone v. Hawkins, 56 Conn. 111, 115, 14 A. 297 (1888).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The plaintiffs rely on Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 836 A.2d 414 (2003), in which the Connecticut Supreme Court defined the “exclusive domain doctrine” as limiting § 22a–16 to exclude “environmental issues ․ which have been placed within the exclusive domain of [an administrative agency].”  (Citations omitted.)  Id. at 138.   Importantly, however, Connecticut Coalition Against Millstone was overruled by the Connecticut Supreme Court in Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 970 A.2d 640 (2009).   In Burton, the Supreme Court held that “the mere fact that an administrative body has jurisdiction over an environmental issue, including a permitting proceeding, does not deprive the courts over a claim brought under § 22a–16 ․ Rather, to have standing under § 22a–16 to raise such a claim, a plaintiff need only make a colorable claim [of unreasonable pollution].”  (Citation omitted;  internal quotation marks omitted.)  Id. at 810;  see also 15 Conn. Practice Book Series § 5:29.50 (noting that the exclusive domain doctrine “is no longer an obstacle to standing for [§ 22a–16] plaintiffs.”).   Accordingly, as the exclusive domain doctrine is no longer good law, the doctrine will not bar the defendants from having standing here.

“The phrase ‘pure permitting claims' [refers] to claims involving allegations of technical or procedural violations of a statutory permitting scheme, as opposed to claims that involve allegations of substantive violations giving rise to unreasonable pollution.”  Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 808 n.15 (holding also that “the doctrine of exhaustion of administrative remedies does not apply to claims of unreasonable pollution brought under the provisions of the act”).   The purpose of the doctrine is to prevent § 22a–16 from being used to attack the issuance of a permit by an administrative agency.   The doctrine also presumes that if the permit is validly issued, and if the limits of the permit are adhered to, then the permitted activity is not unreasonable pollution subject to a claim arising under § 22a–16.   The pure permitting claims doctrine does not apply where the alleged violation is the permitting process, where there is no validly issued permit, or where the allegedly polluting party is violating the limits of the permit.   Here, the defendants allege, and the plaintiffs concede, that no permit has been issued by the DEP. Furthermore, the defendants allege that no permit has even been applied for regarding the portion of the proposed pier which is outside of the DEP's jurisdiction.   The DEP's “Public Notice Summary Sheet” for the proposed pier specifically notes that “the concrete support bases [of the proposed pier] will be located landward of the high tide line and out of the jurisdiction of [the DEP].”

“[T]o have standing under § 22a–16 to raise ․ a claim, a plaintiff need only make a colorable claim that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken.”  (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 810.   As the plaintiffs accurately point out, the defendants' allegations of unreasonable pollution, impairment or destruction of a natural resource are expansive and mirror the language of § 22a–16.   However, allegations which mirror the language of a statute do not automatically imply that the allegations do not state a colorable claim.   Here, the allegations of pollution are numerous and substantive.   Construing the allegations in the light most favorable to the non-moving party, the defendants have sufficiently alleged a colorable claim of unreasonable pollution.

Accordingly the plaintiffs' motion to dismiss the fourth count of the amended counterclaim is denied because the defendants have standing to pursue a claim under § 22a–16.

BY THE COURT

KARAZAN, J.T.R.

FOOTNOTES

FN1. Four other defendants, not at issue in this motion to dismiss, are named in the complaint, Amy Girdler Love, Edward Reynolds, Faith Girdler and Marshall Hamilton.   The first three of these defendants have not filed an appearance, and Hamilton is not a party to the counterclaim at issue in this motion to dismiss..  FN1. Four other defendants, not at issue in this motion to dismiss, are named in the complaint, Amy Girdler Love, Edward Reynolds, Faith Girdler and Marshall Hamilton.   The first three of these defendants have not filed an appearance, and Hamilton is not a party to the counterclaim at issue in this motion to dismiss.

Karazin, Edward R., J.T.R.