Conyers Farm v. Inslands Wtlds., No. Cv95 0147652 S (Dec. 3, 1996) ( 1996 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION MOTION TO DISMISS (#113) MOTION TO DISMISS (#116) The plaintiffs appealed to this court from a decision by the defendant inland wetlands and watercourses agency of the town of Greenwich, denying their application to conduct regulated activities on certain of their real property located in a wetlands area. The plaintiffs allege, inter alia, that the denial of their application amounts to a taking of their property without just compensation. The defendants, the inland wetlands and watercourses agency and the commissioner of the department of environmental protection, filed motions to dismiss those portions of the plaintiffs' appeal which allege a taking on the ground that the court lacks subject matter jurisdiction over such claims in that the agency has not acted with "finality" with regard to the plaintiffs' property.

"[A] motion to dismiss is customarily used to challenge the entire action, not just some of the counts in it." BarclayAssociates, Ltd. v. Danbury, Superior Court, Judicial District of Danbury at Danbury, Docket No. 299108 (February 26, 1993, Fuller, J.) ("The plaintiff has stated a cause of action for unjust enrichment in the third count which is not governed by the finality doctrine, so the entire complaint cannot be dismissed."). The defendants in the present case have not challenged the remainder of the plaintiffs' appeal, so the entire appeal cannot be dismissed. Therefore, the defendants motions to dismiss is an inappropriate vehicle for attacking the plaintiffs' taking claim and that the issue of "finality" is "more appropriately decided by the court which is ultimately assigned to hear the merits of the case."Fraenza v. Keeney, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 516748 (March 9, 1993, Dunn, J., 8 Conn. L. Rptr. 467, 469). But see Ellenthal v. InlandCT Page 7505Wetlands Watercourses Agency, Superior Court, Judicial District of Stamford/Norwalk at Norwalk, Docket No. 129782 (April 19, 1994, Alander, J.) (granting motion to dismiss takings claim based on lack of finality).

Accordingly, defendants' motions to dismiss are denied.

KARAZIN, J.