Marchesi v. Bd. of Selectmen of the Town of Lyme

328 Conn. 615

181 A.3d 531

Rhonda M. MARCHESI

v.BOARD OF SELECTMEN OF the TOWN OF LYME et al.

SC 19726

Supreme Court of Connecticut.

Argued October 19, 2017

Officially released April 24, 2018

Harry B. Heller, for the appellant (plaintiff).

Kenneth M. McKeever, for the appellees (named defendant et al.).

McDonald, Robinson, D'Auria, Vertefeuille and Kahn, Js.^*

ROBINSON, J.

This case returns to us after the remand ordered in Marchesi v. Board of Selectmen , 309 Conn. 608, 72 A.3d 394 (2013), for a trial de novo to determine the length and width of a particular highway known as Brockway Ferry Road. The plaintiff, Rhonda M. Marchesi, appeals¹ from the judgment of the trial court dismissing her appeal, brought pursuant to General Statutes § 13a–40,² from the decision of the defendants, the town of Lyme (town) and its Board of Selectmen (board),³ determining the lost or uncertain boundaries of the westerly end of Brockway Ferry Road pursuant to General Statutes § 13a–39.⁴ On appeal, the plaintiff contends that (1) the board and the trial court lacked subject matter jurisdiction under §§ 13a–39 and 13a–40, respectively, because it had not been judicially established as a condition precedent that Brockway Ferry Road was in fact a public highway, and (2) there were numerous other defects in the prosecution of the underlying petition before the board. Turning to the merits, the plaintiff also claims that the trial court's finding with respect to the width of Brockway Ferry Road was clearly erroneous. We disagree with the plaintiff's claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts and procedural history. Brockway Ferry Road is a highway⁵ located near the shore of the Connecticut River in the town. It extends in a southwest direction from Joshuatown Road toward its terminus near the shore of the Connecticut River, where it historically had provided access to a ferry that had operated from 1725 until 1884. The highway's western end is not improved and is partially encumbered by vegetation and other obstacles. Portions of that area run below the high water mark and are intermittently submerged. "The plaintiff owns real property, improved with a single family residence, on [the highway]. In 2006, several other proprietors of real property abutting [the highway] filed a petition, pursuant to ... § 13a–39, requesting that the board define the boundaries of [the highway], particularly at its western end, in the area of the plaintiff's property.⁶ The board considered documentary and testimonial evidence and held hearings related to the petition. In October, 2006, the board published notice of its memorandum of decision in which it made a determination of the boundary and terminus of [the highway] at its western end as it runs along and into the Connecticut River. Essentially, the board concluded that [the highway] extended through and across the plaintiff's property, past the then existing western terminus of the highway."⁷ (Footnote added; internal quotation marks omitted.) Id., at 612, 72 A.3d 394. The board's decision is depicted on a map dated June 29, 2006 (2006 map).⁸

"Thereafter, the plaintiff brought an administrative appeal, pursuant to ... § 13a–40, in the Superior Court. The plaintiff asserted that the board's decision introduced a public highway through and across her property, lessened the value of her property and negatively affected her use and enjoyment of her property. The plaintiff raised several claims related to the board's jurisdiction. Additionally, the plaintiff claimed that the board had acted illegally, arbitrarily and in abuse of its discretion. The gist of the complaint was that, rather than defining the width of an existing public highway, the board extended the length of [the] highway at its western terminus.

"In June, 2007, the plaintiff moved for summary judgment. The defendants opposed the motion arguing, in part, that the plaintiff was not entitled to move for summary judgment in an administrative appeal. In its May 20, 2008 memorandum of decision, [the court, Abrams, J. ] granted the plaintiff's motion for summary judgment. The court concluded that it was entitled to consider the appeal in a trial de novo and, therefore, that the motion for summary judgment procedurally was appropriate. Thereafter, the court concluded that the plaintiff was entitled to judgment, as a matter of law, because the board exceeded the scope of its statutory authority by determining the length of [the highway] rather than its width." (Internal quotation marks omitted.) Id., at 612–13, 72 A.3d 394. The Appellate Court affirmed the judgment of the trial court. See Marchesi v. Board of Selectmen , 131 Conn. App. 24, 26, 28 A.3d 994 (2011). We then granted the defendants' petition for certification to appeal. See Marchesi v. Board of Selectmen , supra, 309 Conn. at 611 n.4, 72 A.3d 394.

On appeal, we concluded that the Appellate Court had properly determined that "parties appealing pursuant to § 13a–40 are entitled to a trial de novo ...." Id., at 611, 72 A.3d 394 ; see also id., at 617–19, 72 A.3d 394 (concluding that § 13a–40 appeal is trial de novo based on broad statutory language of § 13a–40 compared to other administrative appeal statutes, and lack of "procedural safeguards" in § 13a–39 proceeding before board). We disagreed, however, with the "Appellate Court's conclusion that § 13a–39 authorizes the selectmen of a town to determine the width of the existing highway, but not its length." Id., at 611, 72 A.3d 394 ; see also id., at 621–25, 72 A.3d 394 (relying on definitions of "lines" and "boundaries," along with prior interpretations of § 13a–39, to conclude that board's authority was not limited to highway's width). Accordingly, we reversed the judgment of the Appellate Court and remanded the case to that court with direction to remand the case to the trial court "for further proceedings to determine the width and length of the existing highway." Id., at 611–12, 72 A.3d 394.

On remand, the trial court, Hon. Joseph Q. Koletsky , judge trial referee,⁹ conducted a three day court trial. At that trial, the court received numerous exhibits, including a variety of surveys and historical maps, and heard expert testimony from two surveyors, Richard Strouse and Gerald Stefon, whom the board had retained in connection with the proceedings under § 13a–39 to conduct historical research and survey the lines and bounds of the westerly end of the highway. The court also heard testimony from several adjoining proprietors; see footnote 3 of this opinion; including Robert H. Sutton, Eleanor B. Sutton, Leslie V. Shaffer, Richard W. Sutton, and Curtis D. Deane, about the public's use of the westerly end of the highway for access to the river for recreational purposes such as dog walking, swimming, and boat launching. Parker Lord, the previous owner of the plaintiff's property,¹⁰ testified about his understanding of the highway's boundaries vis-à-vis the plaintiff's property, along with the public's use of the highway for river access.

At the close of the evidence, the plaintiff moved to dismiss the trial de novo proceeding on the ground that the case had effectively been prosecuted by the board and the town—which § 13a–39 required to act as adjudicators rather than advocates—rather than by one of the adjoining proprietors, who would be the real party in interest under §§ 13a–39 and 13a–40. The trial court denied the motion, concluding that it had subject matter jurisdiction based on remand from this court and the fact that the parties had previously agreed that the defendants would assume the burden of proof at the trial de novo. The trial court further emphasized that, in deciding this case, it did not have jurisdiction to determine the legal status of the highway, such as whether it had been abandoned through nonuse or otherwise discontinued, and that its sole charge was to determine the bounds of the highway. After hearing argument about that evidence, the court rendered judgment dismissing the plaintiff's administrative appeal and "confirming" the board's finding with respect to the "lost or uncertain bounds" of the highway's western end. See appendix to and footnote 7 of this opinion. This appeal followed.

On appeal, the plaintiff (1) raises a plethora of challenges to the subject matter jurisdiction of the board and the trial court, and (2) contends that the trial court's determination of the highway's width was clearly erroneous. We address each of these claims in turn, setting forth additional facts and procedural history as appropriate.

I

We begin with the plaintiff's claims that the board lacked subject matter jurisdiction to define the boundaries of the highway under § 13a–39, which, in turn, deprived the trial court of jurisdiction to do so under § 13a–40, because (1) a court of competent jurisdiction had not first resolved a condition precedent, namely, the question of whether a public highway continued to exist in the disputed area, and (2) the filing and prosecution of the underlying petition to the board under § 13a–39 were fatally defective.

A

The plaintiff's first claim is that the board and the trial court lacked subject matter jurisdiction under §§ 13a–39 and 13a–40, respectively, to define the highway's boundaries because a court of competent jurisdiction had not first resolved the threshold question of whether a public highway continued to exist in the disputed area and, more specifically, whether that portion of the highway had been abandoned by nonuse. Relying on Hamann v. Newtown , 14 Conn. App. 521, 541 A.2d 899 (1988), Montanaro v. Aspetuck Land Trust, Inc. , 137 Conn. App. 1, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012), and Nicholas v. East Hampton , Superior Court, Judicial District of Middlesex, Docket No. CV–04–0103439–S (November 14, 2005) (40 Conn. L. Rptr. 453), the plaintiff contends that a judicial determination, through either a...