780 Live Street Partners, LLC v. City of New Haven, CV176072120S

780 LIVE STREET PARTNERS, LLC v. CITY OF NEW HAVEN et al.

No. CV176072120S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

January 16, 2018

UNPUBLISHED OPINION

OPINION

Corradino, Judge

Before the court is a motion to dismiss the complaint. The motion argues that the court lacks subject matter jurisdiction to hear the claim under § 22a-16 of the General Statutes because (1) the statute does not provide standing to make a collateral attack on an administrative decision which involves the issuance of a permit, and (2) the plaintiff has not articulated a colorable claim of unreasonable pollution or destruction of the public trust in the air, water, or other natural resources of the state. In its memorandum supporting the motion, it states in general terms the bases for its first ground for advancing its motion to dismiss. It is said that: " ... the plaintiff is trying for the third time to reverse the decision lawfully made by the City Plan Commission. Plaintiff now seeks to circumvent the well-established statutory scheme for land use decisions and land use appeals ... The complaint now cloaked as a CEPA action, is nothing more than a transparent challenge to the City Plan Commission and/or staff’s approval of Spinnaker’s site plan" (for the 630 Chapel Street site).

Standard of Review

There are well established rules when a motion to dismiss is filed alleging lack of subject matter jurisdiction. Section 10-30(a)(1) of the Practice Book shall be used to " assert (1) lack of jurisdiction over the subject matter."

As noted in Park City Hall v. Commission on Hospitals &amp Health Care, 210 Conn. 697, 702, 703 (1989), quoting from an earlier case. " Ordinarily a challenge to the court’s jurisdiction is raised by the filing of a motion to dismiss. However, whenever a lack of jurisdiction to entertain a particular proceeding comes to the court’s notice, the court can dismiss the proceeding upon its own motion ." (Emphasis by Court.) The court in Cuozzo v. Orange, 315 Conn. 606, 615 (2015), quoting from earlier case law, says that " 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." The Cuozzo court at pages 615-16 quotes from an earlier case to the effect that: " If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence the trial court may dismiss the action without further proceedings."

Case History

The present case was filed on July 14, 2017 and seeks pursuant to § 22a-16, " to require the defendant Spinnaker to create and implement a plan to prevent the unreasonable pollution of Long Island Sound and its tributaries by controlling stormwater runoff. The modified site plan submitted by the defendant and approved by the City Plan Commission or staff in August 2016, allows for a development that will unreasonably pollute or impair the water and other natural resources of the state." The complaint seeks injunctive relief to prohibit the planned and improved development.

In order to address the complicated issues raised by this case it is necessary for the court to discuss prior litigation initiated by the plaintiff in regards to the 630 Chapel Street property at this point from a procedural perspective; later in the opinion it will try to deal with substantive issues raised by the cases about to be discussed. In CV15-6052362 (CV-15) the plaintiff appealed from the City Plan Commission’s approval of a site plan for the defendant’s 630 Chapel Street property (" the property"). That suit was filed on December 14, 2014. The court issued its decision on May 12, 2016. In its decision, the court held that it would not reverse the decision of the Commission in its entirety " especially in light of the de minimis nature of the increase in runoff volume." But the court, pursuant to Section 8-8(e) of the General Statutes remanded the case for the purpose of requiring compliance with the no net increase language in Section 60(e)(8) of the New Haven Zoning Ordinance (" the ordinance"). The " no net increase" language refers to the runoff from the property post-development. The court concluded its opinion by saying the subject of the remand " is the only respect in which the commission’s decision is reversed, in all other respects it is upheld." ^[1]

The matter went back upon remand to the zoning authority and revised plans were submitted by Milone & MacBroom, the defendant’s engineer, to comply with the court’s decision and reviewed by the staff of the Zoning Commission. The defendants took the position that on August 10, 2016, the commission staff had approved the revised plans submitted by Milone & MacBroom which complied with the court’s remand.

The staff acted under the authority of Section 64(7)f of the zoning ordinances. That subsection states that when minor changes to approved site plans are requested, site plan approval can be granted by the City Plan staff and such approvals shall be reported to the commission at its next meeting. The next commissioner meeting was on August 24, 2016 and the staff reported its approval of the modifications through, Ms. Silvary, the Executive Director of the City Plan Department, this would mean the site plan was approved in toto given the court’s decision.

At the August 24, 2016 commission meeting, plaintiff’s attorney presented a petition to intervene under § 22a-19 of the General Statutes and she offered a letter from an expert who was prepared to offer his testimony to the effect that the revised plan would not result in no net increase in runoff from the 630 Chapel Street site post-development.

In a September 15, 2016 notice on the website, the Senior Project Manager for the city said the staff approved the site plan modifications on August 16, 2016. An appeal was filed from the site plan approval, CV16-6065072 (CV16) which claimed that the approved site plan did not comply with the court’s remand order. The court, rightly or wrongly, but none the less definitively, concluded it had no jurisdiction to hear the appeal. In the memorandum dismissing the appeal, the court reasoned that the plaintiff should have been aware of Section 64(7)f of the ordinances allowing the staff to approve minor changes in a site plan, then obligating a staff representative to so inform the Commission which it did on August 24, 2016 through Ms. Gilvarg.

In effect there was nothing more needed to establish finality. The court had already approved most aspects of the site plan; compliance with the remand order was the only matter remaining for full approval of the site plan. The court did not retain jurisdiction. In dismissing CV16-6065072, the court reasoned it had no jurisdiction to hear any issue regarding site plan approval, the proper venue was for the plaintiff to appeal to the Appellate Court.

Exhaustion of Administrative Remedies

The plaintiff in this case argues that the motion to dismiss must be denied because the court in City of Waterbury et al v. Town of Washington et al., 260 Conn. 506 (2002) said ..." we cannot continue to employ the exhaustion doctrine to an independent action under CEPA" (Connecticut Environmental Protection Act), id., 545. More explicitly the court summed up the problem before it at pp. 529-30 of the opinion where it said citing numerous cases, " the doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law ... The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted ... Where a statutory requirement of exhaustion is not explicit, courts are guided by legislative intent in determining whether application of the doctrine would be consistent with the statutory scheme ... Consequently, the requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief ... Thus, the exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency. Therefore, this doctrine does not apply when the legislature determines, by appropriate legislation, that a court may exercise subject matter jurisdiction despite the fact that there also may be administrative procedures available that would, absent such legislation, normally deprive the court of jurisdiction. The defendants argue that CEPA, particularly § 22a-18(b) is such appropriate legislation. We agree." (Emphasis by Supreme Court.)

For the purpose of deciding this case it is necessary to look into the factual background of the City of Waterbury case, that is, the context in which the Court decided the defendants need not exhaust administrative remedies to bring a Section 22a-16 action. In that case, the plaintiff City brought an action for declaratory judgment that its diversion of water from a river as a source for water supply through the city’s operation of a dam did not violate CEPA, create a public or private nuisance or violate any riparian rights of the downstream town of Washington or landowners. The defendants brought a Section 22a-16 action and the plaintiff city moved to dismiss it on the grounds that before bringing the action the defendants failed to exhaust their administrative remedies; the department of environmental protection...