Peter L. Wray et al. v. Inland Wetlands & Watercourses Commission of New Canaan et al. (2013)

MEMORANDUM OF DECISION

I

On June 18, 2012, the plaintiffs, Peter L. Wray, Helen Belluschi, and Raffaele Soro, filed the instant appeal of a May 2012 decision of the defendant, the Inland Wetlands and Watercourses Commission of New Canaan (agency), denying an application by the defendant, 47 Jelliff Mill Road, LLC,¹ to construct an affordable housing project.   The plaintiffs allege that the agency should have denied the application for other reasons and they seek injunctive relief preventing the defendant from demolishing a certain mill building.²

On April 25, 2013, the defendant and the agency filed a joint motion to dismiss the appeal on the grounds that it is moot.   The plaintiffs filed a memorandum in opposition to the motion on May 28, 2013.   On June 11, 2013, the defendant and the agency filed a reply memorandum.   This court heard oral argument on July 2, 2013.

The facts pertinent to the motion to dismiss are essentially undisputed.   The defendant, among others,³ submitted an application to the agency in December of 2011 to construct a sixteen-unit residential development adjacent to a dam on the Noroton River.⁴  The agency denied the application in May of 2012 because the defendant failed to secure a municipal flood plain permit.   The defendant appealed the denial in Forty–Seven Jeliff Mill, LLC v. New Canaan Inland Wetlands Commission, Superior Court, judicial district of New Britain, Docket No. CV–12–6017360–S.   The defendant also filed an appeal of the denial of the zoning application by the New Canaan Planning and Zoning Commission (commission) for the same project.   See 47 Jeliff Mill, LLC v. New Canaan Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–12–6017106–S.

The plaintiffs herein, owning land abutting the project, did not seek to intervene in those appeals.⁵  Instead, they brought this separate appeal alleging in part that the department of energy and environmental protection (DEEP) had jurisdiction, not the agency, because the building is connected to the dam;  the agency failed to consider feasible and prudent alternatives;  and the agency failed to consider the testimony of the plaintiffs' experts on environmental issues.

While the three appeals were pending, the defendant modified its application reducing the number of units from sixteen to ten, separating the units from the dam structure, and removing the units from the 100–year flood plain.   This new site plan was brought to both the agency and the commission pursuant to General Statutes §§ 8–8n and 22a–43(d) and Practice Book § 14–7A for a joint public hearing on March 26, 2013.   The plaintiffs did not speak or participate at the hearing.   Thereafter, on April 17, 2013, the court, Cohn, J., held the requisite hearing pursuant to §§ 8–8n and 22a–43(d) on the stipulated settlement.   Counsel for the plaintiffs appeared at that hearing to oppose the settlement and unsuccessfully made an oral motion to intervene.   The settlement, based upon the March of 2013 revision to the application, was approved by the court.⁶

II

“A claim that an appellant in an administrative appeal seeks review of issues that are moot or that such appellant has failed to exhaust its administrative remedies implicates the court's subject matter jurisdiction and may be raised at any stage of the proceedings ․ Such a claim is a proper subject of a motion to dismiss.”  (Citations omitted.)  Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 203, 821 A.2d 269 (2003).   “Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties ․ A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.”  (Internal quotation marks omitted.)  Id., 204.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction ․ When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot ․ Most postjudgment appeals filed by would-be interveners will be moot because the relief sought, i.e., intervention into the underlying action, cannot be granted once the action has gone to judgment.”   (Citation omitted;  internal quotation marks omitted.)  AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 542, 867 A.2d 37 (2005), aff'd, 280 Conn. 405, 908 A.2d 1033 (2006).

“[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow ․ Because [an appellate] court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.   The test for determining mootness of an appeal is whether there is any practical relief [the appellate] court can grant the appellant ․ If no practical relief can be afforded to the parties, the appeal must be dismissed.”  (Citations omitted;  internal quotation marks omitted.)   Urbanowicz v. Planning & Zoning Commission, 87 Conn.App. 277, 291–92, 865 A.2d 474 (2005).

III

The defendant argues that this matter is now moot as there is no practical relief that can be afforded to the plaintiffs.   This court agrees.   First, as indicated, this is an appeal from a denial of an application.   The plaintiffs seek to have the agency deny the application on other grounds.   Nevertheless, no authority requires an agency to state every reason in granting or denying an application;  the agency is only required by statute to state the reasons on the record.   See General Statutes § 22a–42a(d);  see also Samperi v. Inland Wetlands Agency, 226 Conn. 579, 590–91, 628 A.2d 1286 (1993) (“an agency is not required to state all its determinations on the record so long as the record provides an adequate basis for the agency's decision”).   Indeed, “[w]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission.   It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision.”  DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).   Moreover, “[i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.”  (Emphasis in original;  internal quotation marks omitted.)  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990).   Hence, one stated reason would suffice if there is support in the record.

In the present case, the plaintiffs seek a denial of the application based upon other reasons.   Nevertheless, the agency stated its reasons for the denial of the application.   Thus, the court cannot “search out and speculate upon other reasons which might have influenced” the agency in reaching its decision.   See DeMaria v. Planning & Zoning Commission, supra, 159 Conn. 541.

Second, and relevant to the mootness issue, the December 2011 application has been superceded by the March 2013 revision and the December 2011 application is no longer at issue.   In the court-approved settlement agreement, which is attached to the motion to dismiss, the development is reduced to ten units, is not connected to the dam, and all units are relocated outside the 100–year flood plain.   It is a significantly different proposal.

In Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992), the court addressed a similar factual scenario.   An appeal was brought by an abutting landowner challenging the commission's approval of a subdivision.   Id., 296.   While the appeal was pending, the applicant filed another application, which was also approved by the commission, but, unlike the first, was not appealed.  Id. The applicant then filed a motion to dismiss the appeal arguing that the first appeal was moot.  Id.

The court “consider[ed] the defendants' threshold claim that subsequent events ha[d] so overtaken this litigation that the appeal ha[d] become moot.”   (Internal quotation marks omitted.)  Id., 297.   It held, “Having obtained approval from the planning commission for the resubdivision of the identical property and having thereafter recorded the resubdivision map upon the land records, the defendants waived irrevocably whatever benefit they may have derived from the planning commission's earlier approval of the first subdivision.   The defendants having withdrawn their claim to its benefits and having effectively extinguished the original subdivision plan through recording of the resubdivided version, the subdivision's potential burdens to the plaintiff no longer presented a justiciable issue.”  Id., 298–99;  see also Baumer v. Zoning Commission, 45 Conn.App. 653, 697 A.2d 704 (1997) (citing Gagnon and upholding trial court dismissal of appeal based upon approval of revised site plan from which no appeal was taken).

In the present case, the revised application was approved by the agency and the commission and the stipulated settlement was approved by the court.   The plaintiffs did not timely intervene in the other appeals and the revised application was not appealed.⁷  This appeal is not a substitute forum for the appeal of the actions of the agency and the commission in approving the revised application.   See Gagnon v. Planning Commission, supra, 222 Conn. 299 n.3 (“in no event could this appeal have become the surrogate forum for the appeal that could have flowed from the planning commission's subsequent action in approving the resubdivision”).   Furthermore, the revisions have “so overtaken this litigation that the appeal has become moot.”   See id., 297.   Accordingly, the defendant and the agency's motion to dismiss is granted and a judgment of dismissal against the plaintiffs shall enter.

Berger, J.

FOOTNOTES

FN1. The defendant owns 47 Jelliff Mill Road, a one-acre parcel, and joined with Bryan Gardiner and Cheryl Gardiner who own 41 Jelliff Mill Road, a .69–acre parcel, in applying to the commission.   Bryan Gardiner and Cheryl Gardiner are not parties to this appeal..  FN1. The defendant owns 47 Jelliff Mill Road, a one-acre parcel, and joined with Bryan Gardiner and Cheryl Gardiner who own 41 Jelliff Mill Road, a .69–acre parcel, in applying to the commission.   Bryan Gardiner and Cheryl Gardiner are not parties to this appeal.

FN2. The building has also been described as a “cinder block building and garage.”.  FN2. The building has also been described as a “cinder block building and garage.”

FN3. See footnote 1 of this memorandum of decision..  FN3. See footnote 1 of this memorandum of decision.

FN4. In October 2011, the department of energy and environmental protection (DEEP) issued a permit for the repair of the dam..  FN4. In October 2011, the department of energy and environmental protection (DEEP) issued a permit for the repair of the dam.

FN5. In the plaintiffs' memorandum in opposition to the motion to dismiss, they argue that they emailed the defendant about consolidating all three cases.   The defendant declined to consolidate and no motion to consolidate was filed in any of the cases..  FN5. In the plaintiffs' memorandum in opposition to the motion to dismiss, they argue that they emailed the defendant about consolidating all three cases.   The defendant declined to consolidate and no motion to consolidate was filed in any of the cases.

FN6. The stipulated settlement required that certain actions take place on or before June 30, 2013, including, but not limited to, approval by the commission, approvals of the on-site septic system by appropriate authorities, documentation concerning the flood plain management guidelines, and approval by DEEP of dam repairs.   At the July 2, 2013 oral argument before this court, the defendant's counsel reported that the conditions were all satisfied..  FN6. The stipulated settlement required that certain actions take place on or before June 30, 2013, including, but not limited to, approval by the commission, approvals of the on-site septic system by appropriate authorities, documentation concerning the flood plain management guidelines, and approval by DEEP of dam repairs.   At the July 2, 2013 oral argument before this court, the defendant's counsel reported that the conditions were all satisfied.

FN7. The plaintiffs also argue that the parties could not modify the application without commencing a new administrative process.   This is simply not the case as parties are free to settle land use cases, but the settlement must be both brought to a public meeting before the agency and approved by the court.   See General Statutes §§ 8–8n and 22a–43(d) and Practice Book § 14–7A..  FN7. The plaintiffs also argue that the parties could not modify the application without commencing a new administrative process.   This is simply not the case as parties are free to settle land use cases, but the settlement must be both brought to a public meeting before the agency and approved by the court.   See General Statutes §§ 8–8n and 22a–43(d) and Practice Book § 14–7A.

Berger, Marshall K., J.