Christopher Brown v. Commissioner of Transportation (2014)

MEMORANDUM OF DECISION

I

The plaintiff, Christopher Brown, seeks a writ of mandamus to require the defendant, James Redeker, commissioner of the Connecticut department of transportation (department), to construct an above grade crossing and to open up an at grade crossing (until the above grade crossing is built) at the closed Flower Street crossing in Hartford.   According to the plaintiff's amended complaint, Flower Street is “an essential pedestrian and bicycle passageway between the Asylum Hill ․ and the Frog Hollow neighborhood[s].” ¹  In closing the crossing without having built an above grade replacement for pedestrians and cyclists, the plaintiff alleges that the defendant violated the terms of an administrative hearing officer's May 20, 2013 decision, acted in a reckless and egregious manner, and acted in excess of his statutory authority under General Statutes §§ 13b–270 and 4–8.

The following facts are essentially undisputed.   State project 171–305 is a 9.4–mile bus way connecting downtown Hartford and downtown New Britain.   As part of the project, the bureau of engineering and construction of the department of transportation (bureau) filed a petition pursuant to General Statutes § 13b–270 ² with the defendant to remove the existing highway and railroad crossing at Flower Street in Hartford.   A public hearing was held on August 23, 2012, presided over by hearing officer Judith Almeida, who found that each day sixteen trains, with a maximum speed of up to thirty miles per hour, and 6000 vehicles, utilize the crossing.   On October 19, 2012, Almeida decided that the Flower Street at grade crossing should be closed to vehicular traffic for safety reasons and that pedestrians and bicyclists should be allowed to utilize the crossing during construction and upon implementation of the bus way.

On November 2, 2012, the bureau filed a motion for reconsideration and hearings were held on January 24, 2013, May 8, 2013, and May 9, 2013.   Representatives of the city of Hartford attended and sought party status, but Hartford was granted only intervenor status.³  Additionally, the plaintiff, as director of Bike Walk Connecticut;  David Corrigan, representing the Frog Hollow Neighborhood Revitalization Zone;  and Jennifer Cassidy, representing the Asylum Hill Neighborhood Association;  sought but were denied party and intervenor status.   The plaintiff was allowed as an individual to submit written testimony on the record pursuant to General Statutes § 4–177c(b).⁴

On May 20, 2013, Almeida rendered her second decision finding that “[c]losing the Flower Street crossing to pedestrians and bicyclists would devastate the community by isolating one community from another in addition to having a substantial negative economic impact on the local businesses in the community.” ⁵  She found that, despite some thirteen proposals, no safe at grade pedestrian and bicyclist crossing could be constructed.   The bureau had proposed an above grade crossing at a cost of approximately $3 million to $4 million to be completed by 2016.⁶  She noted that all persons attending the hearings supported the project and that the only issue in controversy was the pedestrian and bicyclist crossing.   She ordered that pedestrian and bicycle traffic should be maintained during construction to the extent possible and that, upon implementation, pedestrian and bicycle traffic should be maintained by a “grade separated” crossing, also referred to as “the up and over bridge.”

On November 1, 2013, a notice was issued indicating that the existing at grade pedestrian and bicycle crossing would permanently close and that a temporary pedestrian crossing would be available as of November 11, 2013.   The plaintiff alleges that the temporary crossing was not completed as of November 11, 2013.   Nevertheless, in a stipulation filed with the court on January 22, 2014, the plaintiff agreed that the department “installed a permanent walkway from Flower Street up to Broad Street that provides a permanent alternative route for pedestrian and bicycle traffic from Flower Street to Capitol Avenue during the design and construction of the grade separated pedestrian/bicycle bridge over the Flower Street crossing.”

On November 14, 2013, the plaintiff commenced this action.   In the plaintiff's December 4, 2013 amended complaint, he alleges that his primary means of transportation is his bicycle and that he utilized the crossing either as a pedestrian or on his bicycle sometimes more than twice a day.   On December 18, 2013, the defendant moved to dismiss this case on the grounds that the plaintiff's action is barred by sovereign immunity, the plaintiff lacks standing, and the plaintiff failed to exhaust his administrative remedies.   On January 6, 2014, the plaintiff filed a memorandum in opposition.   This court heard the motion to dismiss and the writ of mandamus on January 21, 2014.⁷

II

“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 court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide ․ Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Emphasis omitted;  internal quotation marks omitted.)  Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740–41 (2014).

“A motion to dismiss may ․ raise issues of fact and would, therefore, require a ․ hearing [to determine the facts] ․ [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists ․ In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses ․ When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.”  (Citations omitted;  internal quotation marks omitted.)   Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

III

A

The defendant first argues that his motion to dismiss should be granted as the court lacks subject matter jurisdiction based upon the doctrine of sovereign immunity.  “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ․ [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest ․ on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property ․ Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence.”  (Citations omitted;  internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).

“[T]he sovereign immunity enjoyed by the state is not absolute.   There are [three] exceptions:  (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity ․ (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights ․ and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.”  (Citations omitted;  internal quotation marks omitted.)   Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).

In the present case, the plaintiff does not allege that the legislature waived sovereign immunity or that the defendant violated the plaintiff's constitutional rights; ⁸  the plaintiff only argues that the defendant acted in excess of his statutory authority “by failing to follow the results of the [General Statutes] § 13b–270 process.”   The defendant asserts that our Supreme Court has espoused two different standards as to what the plaintiff is required to allege to invoke the third exception to sovereign immunity, but maintains that the plaintiff is unable to meet either standard.

In Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003), the court held, “a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that ․ in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.”   In Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349, the court held that the plaintiff must make “a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.”  (Emphasis added.)   The plaintiff's amended complaint alleges that the defendant has failed to comply with the terms of Almeida's orders and the defendant has thus violated the orders.   The plaintiff does not allege that the defendant's wrongful conduct was in furtherance of an illegal purpose.   Indeed, both in the plaintiff's memorandum of law in opposition to the motion to dismiss on page twelve and at the hearing, he concedes that he has not alleged an illegal purpose.

Regardless of whether the plaintiff is required to allege an illegal purpose, “[f]or a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority;  they also must allege or otherwise establish facts that reasonably support those allegations.”  Id., 350.  “Although in reviewing a motion to dismiss we must construe the allegations of the complaint in the light most favorable to the plaintiff, to survive the defense of sovereign immunity the complaint must nevertheless allege sufficient facts to support a finding of unconstitutional or extra statutory state action ․ In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.”  (Citation omitted;  internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, supra, 301 Conn. 66.

In the present case, there is no allegation that any statute is unconstitutional.   Therefore, the court examines § 13b–270 to determine if the defendant's conduct was in excess of his statutory authority.   See Miller v. Egan, supra, 265 Conn. 327 (“when a process of statutory interpretation establishes that the state officials acted beyond their authority, sovereign immunity does not bar an action seeking declaratory or injunctive relief”).   The plaintiff is not arguing that it was improper or that the defendant exceeded his statutory authority by utilizing the § 13b–270 process.⁹  Section 13b–270, in relevant part, provides that the “commissioner shall appoint a time and place for hearing the petition, and shall give such notice thereof to such petitioners ․ as said commissioner judges reasonable;  and, after such notice and hearing, said commissioner shall determine what alterations or removals, if any, shall be made and by whom made ․” The hearing occurred and the hearing officer issued orders on the removal and the alteration of the at grade crossing.   The statute does not specifically refer to the construction of a pedestrian or bicyclist crossing.   Thus, there is nothing in the statute per se that would allow this court to conclude that the defendant acted in excess of his statutory authority.   See General Statutes § 1–2z (“[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes ․ Nevertheless, the issue is arguably whether an alleged failure to comply with Almeida's decision constitutes an action by the defendant in excess of his authority.   That analysis requires two considerations.   The first is whether he is statutorily required to comply with the administrative decisions of his agency.   The parties cite no authority for this, but it is irrelevant in light of the second consideration which is whether the defendant actually failed to comply with Almeida's decision.   Almeida stated that, “During construction of CTfastrak and the pedestrian/bicycle bridge, the Department shall make every reasonable effort to keep the Flower Street crossing open to pedestrian and bicycle traffic.   There will be times, however, when this will not be possible due to safety concerns.   During those times when safety dictates it necessary, the Flower Street at grade crossing may be closed to pedestrians and bicyclists.”  (Emphasis added.)   Later, in her order, she found, “Pedestrian and bicycle traffic should be maintained over the Flower Street crossing to the extent possible during construction of CTfastrack and the pedestrian/bicycle bridge.   Pedestrian and bicycle traffic over the Flower Street crossing shall be maintained by a grade separated bridge upon the implementation of CTfastrack.”  (Emphasis added.)   Such language allows the defendant discretion in providing for a pedestrian and bicycle crossing and belies any argument that the defendant had a mandatory duty to keep the at grade crossing until the above grade crossing was built.   Hence, the defendant cannot be said to have failed to comply with Almeida's order or to have acted in excess of his statutory authority.   Indeed, Almeida also stated, “Department engineers and consultants have worked tirelessly over many weeks and months to vet all possible alternatives to move people over the crossing.   After looking at thirteen possible alternatives, they came up with a well thought out proposal which solves all the safety problems and still allows free movement over the crossing.   They should be commended for their efforts.   This has been a long difficult process but the Department staff and consultants have risen to the occasion.

Furthermore, the parties have stipulated that the department has “installed a permanent walkway from Flower Street up to Broad Street that provides a permanent alternative route for pedestrian and bicycle traffic from Flower Street to Capitol Avenue during the design and construction of the grade separated pedestrian/bicycle bridge over the Flower Street crossing.”   While this crossing may not be as convenient as using Flower Street and is not the aforementioned bridge, it provides an alternative route during the lengthy period it will take to construct the bridge.¹⁰  In light of the discretion afforded the defendant in Almeida's decision, the court cannot conclude that the defendant has acted in excess of his authority.   Therefore, the defendant's motion to dismiss is granted as the court lacks subject matter jurisdiction based upon the doctrine of sovereign immunity.

B

The defendant also seeks to dismiss this action maintaining that the plaintiff lacks standing.  “The issue of standing implicates [the] court's subject matter jurisdiction ․ Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ․ Standing requires no more than a colorable claim of injury;  a [party] ordinarily establishes ․ standing by allegations of injury.   Similarly, standing exists to attempt to vindicate arguably protected interests ․

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest ․ Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.”  (Citation omitted;  internal quotation marks omitted.)   Emerick v. Commissioner of Public Health, 147 Conn.App. 292, 295–96, 81 A.3d 1217 (2013).

“Standing is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ․ These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.   Such a personal stake in the outcome of the controversy ․ provides the requisite assurance of concrete adverseness and diligent advocacy ․ The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.”  (Internal quotation marks omitted.)  Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).

In the present case, the plaintiff alleges only that he uses his bike as a principal means of transportation, he traverses over Flower Street either as a pedestrian or on his bicycle sometimes more than twice a day, and others in the neighborhood use Flower Street as a passageway between the neighborhoods of Asylum Hill and Frog Hollow.   The plaintiff's allegations are similar to those in other cases where road or highway impacts caused inconvenience to an individual.   In Clark v. Saybrook, 21 Conn. 313 (1851), a landowner contested the layout of a highway and bridge that would impact his use of a creek to transport stone from his quarry.   The court stated that “he would ․ be incommoded only, in common with the public generally, in the use of another highway, which consisted of the creek, but would suffer no damage, which would be special or peculiar to himself.   It is now too well settled to require argument, that such an inconvenience or obstruction, even if unauthorized and illegal, does not constitute an injury, for which an individual can maintain a private action” Id., 326–27.   This principle remains true today.   See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 543–44, 833 A.2d 883 (2003) (affirming that specific personal and legal interest of plaintiffs not specially and injuriously affected where alleged traffic congestion was quarter mile away from plaintiffs' properties and where delay would affect all members of public that use intersection.)

In the present case, the plaintiff's allegations do not show, and in fact contradict any argument, that he has a personal or specific injury different from that of the public at large.   See Emerick v. Commissioner of Public Health, supra, 147 Conn.App. 295–96.   As the plaintiff has failed to demonstrate a personal and legal interest different from that of all members of the community, the plaintiff lacks standing to bring this action.¹¹

Accordingly, the defendant's motion to dismiss is granted, a judgment of dismissal shall enter, and the court need not consider the writ of mandamus.

Berger, J.

FOOTNOTES

FN1. The subject crossing is on the Amtrak Springfield line located at milepost 36.2 at Flower Street, which is a two-way street located between Capitol Avenue and Farmington Avenue..  FN1. The subject crossing is on the Amtrak Springfield line located at milepost 36.2 at Flower Street, which is a two-way street located between Capitol Avenue and Farmington Avenue.

FN2. Section 13b–270, in relevant part, provides:  “The selectmen of any town, the mayor and common council of any city or the warden and burgesses of any borough, within which a highway crosses or is crossed by a railroad, or the directors of any railroad company whose road crosses or is crossed by a highway, may bring their petition in writing to the Commissioner of Transportation, alleging that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing and the substitution of another therefor, not at grade, or the removal of obstructions to the sight at such crossing, and praying that the same may be ordered.   Thereupon said commissioner shall appoint a time and place for hearing the petition, and shall give such notice thereof to such petitioners, the company, the municipality or municipalities in which such crossing is situated and the owners of the land adjoining such crossing and adjoining that part of the highway to be changed in grade, as said commissioner judges reasonable;  and, after such notice and hearing, said commissioner shall determine what alterations or removals, if any, shall be made and by whom made ․”.  FN2. Section 13b–270, in relevant part, provides:  “The selectmen of any town, the mayor and common council of any city or the warden and burgesses of any borough, within which a highway crosses or is crossed by a railroad, or the directors of any railroad company whose road crosses or is crossed by a highway, may bring their petition in writing to the Commissioner of Transportation, alleging that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing and the substitution of another therefor, not at grade, or the removal of obstructions to the sight at such crossing, and praying that the same may be ordered.   Thereupon said commissioner shall appoint a time and place for hearing the petition, and shall give such notice thereof to such petitioners, the company, the municipality or municipalities in which such crossing is situated and the owners of the land adjoining such crossing and adjoining that part of the highway to be changed in grade, as said commissioner judges reasonable;  and, after such notice and hearing, said commissioner shall determine what alterations or removals, if any, shall be made and by whom made ․”

FN3. In her decision, Almeida notes that Hartford initially opposed the request for reconsideration, but it withdrew its opposition during the reconsideration process..  FN3. In her decision, Almeida notes that Hartford initially opposed the request for reconsideration, but it withdrew its opposition during the reconsideration process.

FN4. Section 4–177c(b) provides:  “Persons not named as parties or intervenors may, in the discretion of the presiding officer, be given an opportunity to present oral or written statements.   The presiding officer may require any such statement to be given under oath or affirmation.”.  FN4. Section 4–177c(b) provides:  “Persons not named as parties or intervenors may, in the discretion of the presiding officer, be given an opportunity to present oral or written statements.   The presiding officer may require any such statement to be given under oath or affirmation.”

FN5. This decision, attached to the plaintiff's complaint, was not appealed..  FN5. This decision, attached to the plaintiff's complaint, was not appealed.

FN6. Almeida noted that Hartford wished to utilize the funds for the crossing for other unidentified area projects according to a letter from Hartford Mayor Pedro Segarra dated May 8, 2013..  FN6. Almeida noted that Hartford wished to utilize the funds for the crossing for other unidentified area projects according to a letter from Hartford Mayor Pedro Segarra dated May 8, 2013.

FN7. As the underlying facts applied equally to both the motion to dismiss and the writ of mandamus, this court heard both the motion and the writ simultaneously, by agreement of the parties, with the understanding that the court would consider the issues concerning jurisdiction first.   See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991)..  FN7. As the underlying facts applied equally to both the motion to dismiss and the writ of mandamus, this court heard both the motion and the writ simultaneously, by agreement of the parties, with the understanding that the court would consider the issues concerning jurisdiction first.   See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).

FN8. The plaintiff does not allege in his amended complaint that his constitutional rights have been violated, but argues this in his memorandum of law in opposition to the motion to dismiss.   At the hearing, this court ruled that it would not address a violation of constitutional rights due to the plaintiff's failure to plead it.   See id., 350 (“[f]or a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests” [internal quotation marks omitted] )..  FN8. The plaintiff does not allege in his amended complaint that his constitutional rights have been violated, but argues this in his memorandum of law in opposition to the motion to dismiss.   At the hearing, this court ruled that it would not address a violation of constitutional rights due to the plaintiff's failure to plead it.   See id., 350 (“[f]or a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests” [internal quotation marks omitted] ).

FN9. In the plaintiff's memorandum in opposition to the motion to dismiss on page fourteen, he questions the defendant's use of the process, but does not contest it..  FN9. In the plaintiff's memorandum in opposition to the motion to dismiss on page fourteen, he questions the defendant's use of the process, but does not contest it.

FN10. The plaintiff strongly argues that the newly established five-foot bicycle lanes on Broad Street are not safe due to traffic conditions.   Again, while not as convenient as Flower Street, the new alternative is established in lieu of the at grade crossing, and the plaintiff may walk his bicycle for a short distance to avoid the automobile traffic.   According to exhibit eleven, the pedestrian alternative will take about six and one-half minutes to traverse, which is about twice the time it would take if the at grade crossing at Flower Street was available.   A bicyclist would traverse the same distance on the new alternative in two and one-half minutes..  FN10. The plaintiff strongly argues that the newly established five-foot bicycle lanes on Broad Street are not safe due to traffic conditions.   Again, while not as convenient as Flower Street, the new alternative is established in lieu of the at grade crossing, and the plaintiff may walk his bicycle for a short distance to avoid the automobile traffic.   According to exhibit eleven, the pedestrian alternative will take about six and one-half minutes to traverse, which is about twice the time it would take if the at grade crossing at Flower Street was available.   A bicyclist would traverse the same distance on the new alternative in two and one-half minutes.

FN11. Hence, this court does not address the final argument that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies..  FN11. Hence, this court does not address the final argument that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies.

Berger, Marshall K., J.