Bochanis v. Sweeney

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MEGAN BOCHANIS ET AL. v. FRANCES
SWEENEY ET AL.
(AC 34756)
DiPentima, C. J., and Keller and Dupont, Js.
Argued November 18, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Thomas J. Weihing, for the appellants (plaintiffs).
John F. Fallon, for the appellee (named defendant).
Barbara M. Schellenberg, with whom, on the brief,
was Ari J. Hoffman, for the appellees (defendant Town
of Fairfield Conservation Commission et al.).
Opinion
DUPONT, J. The plaintiffs, Megan Bochanis, John
Bochanis, John McMillan, and Lori McMillan, appeal
from the judgment of the trial court rendered after it had
granted the motions to dismiss filed by the defendants,
Frances Sweeney, Kevin Sweeney, the Fairfield Conser-
vation Commission (commission) and the Fairfield Zon-
ing Board of Appeals (board).1 This case is another
in the litany of cases involving ‘‘neighborly’’ disputes
between landowners as to the usage of their abutting
real estate. The plaintiffs claim that the court erred in
concluding that: (1) they failed to exhaust their adminis-
trative remedies by failing to directly appeal from the
granting of an inland wetlands permit to the defendants
in 2006, which, accordingly, deprived the court of sub-
ject matter jurisdiction; and (2) the wetlands permit
issued to the defendants properly was extended.2 With
respect to the plaintiffs’ second argument that the per-
mit improperly was extended, the plaintiffs specifically
claim that: (1) the court’s reliance on General Statutes
(Supp. 2010) § 22a-42a (g)3 was misplaced and that
notice of the permit extension was required before the
extension could be granted; and (2) the expiration date
of the permit was not tolled because of the defendants
appeal from the denial of their two requested zoning
variances. We conclude that the plaintiffs’ failure to
exhaust their administrative remedies deprived the
court of subject matter jurisdiction to address the valid-
ity of the defendants’ wetlands permit. To the extent
that the plaintiffs claim the permit was improperly
extended as a procedural matter, we conclude that the
permit properly was renewed and extended in all
respects.4 Accordingly, we affirm the judgment of the
court.
The following facts, as found by the trial court, are
relevant to the resolution of the plaintiffs’ appeal.
Megan Bochanis and John Bochanis are the owners of
the property located at 963 South Pine Creek Road,
where they reside.5 This property abuts a vacant parcel
of land located at 995 South Pine Creek Road (property)
owned by the defendants. On October 4, 2006, Frances
Sweeney submitted an inland wetlands permit applica-
tion to the commission in order to construct a single
family residence within a regulated area on the prop-
erty. After receiving the application, the commission
did not hold a public hearing on the application.6 On
December 7, 2006, the commission voted to condition-
ally approve the application, effective December 15,
2006, with an expiration date of December 15, 2008.
Notice of the commission’s decision was published in
the Fairfield Citizen News.7 No appeal by the plaintiffs
was taken from the approval of the permit.
After the commission approved the wetlands permit,
the defendants sought variances from the board regard-
ing two separate provisions of the Fairfield Zoning Reg-
ulations. The defendants’ application was heard by the
board on July 5, 2007, and, after the hearing, the board
denied the defendants’ variance requests. The defen-
dants appealed that decision to the Superior Court,
which sustained the appeal on July 10, 2009, concluding
that the defendants had met their burden of demonstra-
ting that the denial of their application for two variances
was arbitrary, illegal, and an abuse of discretion. Megan
Bochanis and John Bochanis, as intervening parties in
that action, then filed a petition in this court for certifi-
cation to appeal from the Superior Court’s judgment
sustaining the defendants’ appeal, which this court
denied on October 14, 2009. Thereafter, counsel for the
defendants wrote to the commission alerting them to
the fact that certification had been denied. On Novem-
ber 16, 2009, the commission sent the defendants’ coun-
sel a letter, informing him that the defendants’ permit
had been extended to October 14, 2011 ‘‘[b]ased upon
past practice on similar permit expiration issues.’’
The plaintiffs commenced the present action on April
22, 2010, and thereafter filed an amended complaint on
October 21, 2010, in which they claimed that the permit
issued by the commission in December, 2006, was
invalid because it had not been extended properly by
vote of the commission. The plaintiffs requested money
damages and sought an injunction prohibiting the defen-
dants from constructing a residence on the property
without obtaining proper zoning and wetlands approval.
The board and the commission, joined by the defen-
dants, filed motions to dismiss the plaintiffs’ complaint
on the ground that the plaintiffs had failed to exhaust
available administrative remedies pursuant to General
Statutes § 22a-43 and that, therefore, the court lacked
subject matter jurisdiction to hear the case pursuant
to Practice Book § 10-33.8 The court granted the motions
to dismiss on May 30, 2012.9 In dismissing the plaintiffs’
action for lack of subject matter jurisdiction, the court
concluded that, contrary to the plaintiffs’ contentions,
neither actual nor constructive notice of the permit
extension was required by § 22a-42a (g) and that the
permit had been extended both by § 22a-42a (g) and
due to the defendants’ appeal from the board’s denial
of the defendants’ requested variances. This appeal
followed.
On appeal, the plaintiffs claim that the court errone-
ously concluded that: (1) it lacked subject matter juris-
diction due to their failure to exhaust their
administrative remedies by directly appealing the 2006
wetlands permit approval; and (2) the permit issued to
the defendants properly was renewed. With respect to
the plaintiffs’ second argument, the plaintiffs specifi-
cally assert that: (1) the court’s reliance on § 22a-42a
(g) was misplaced and that notice of the permit exten-
sion was required before the extension was granted;
and (2) the expiration date of the permit was not tolled
because of the defendants’ appeal from the denial of
the requested variances. We disagree with the plaintiffs.
We begin our analysis with the appropriate standard
of review. ‘‘The standard of review for a court’s decision
on a motion to dismiss is well settled. A motion to
dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . . When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
it must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided upon that alone.’’
(Internal quotation marks omitted.) Gold v. Rowland,
296 Conn. 186, 200–201, 994 A.2d 106 (2010). ‘‘Because
the exhaustion [of administrative remedies] doctrine
implicates subject matter jurisdiction, [the court] must
decide as a threshold matter whether that doctrine
requires dismissal of the [plaintiffs’] claim. . . .
[B]ecause [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary.’’ (Internal quotation marks omitted.)
Gerardi v. Bridgeport, 99 Conn. App. 315, 317, 913 A.2d
1076 (2007).
I
The plaintiffs first claim that the court erroneously
concluded that their failure to exhaust their administra-
tive remedies by failing to directly appeal from the
granting of the permit in 2006 pursuant to § 22a-43 (a)
deprived the court of subject matter jurisdiction. Specif-
ically, the plaintiffs contend that the exhaustion doc-
trine is inapplicable to them because injunctive relief is
necessary to prevent immediate and irreparable harm.10
We disagree.
‘‘It is a settled principle of administrative law that if
an adequate administrative remedy exists, it must be
exhausted before the Superior Court will obtain juris-
diction to act in the matter. . . . We have frequently
held that where a statute has established a procedure
to redress a particular wrong a person must follow the
specified remedy and may not institute a proceeding
that might have been permissible in the absence of such
a statutory procedure. . . . [B]ecause the exhaustion
doctrine implicates subject matter jurisdiction, we must
decide as a threshold matter whether that doctrine
requires dismissal of the [plaintiffs’] claim.’’ (Citations
omitted; internal quotation marks omitted.) Stepney,
LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725(2003).
‘‘There is no absolute right of appeal to the courts
from a decision of an administrative agency. . . .
Appeals to the courts from administrative [agencies]
exist only under statutory authority . . . . Appellate
jurisdiction is derived from the . . . statutory provi-
sions by which it is created, and can be acquired and
exercised only in the manner prescribed. . . . In the
absence of statutory authority, therefore, there is no
right of appeal from a planning commission’s decision
. . . . Under our exhaustion of administrative reme-
dies doctrine, a trial court lacks subject matter jurisdic-
tion over an action that seeks a remedy that could be
provided through an administrative proceeding, unless
and until that remedy has been sought in the administra-
tive forum. . . . In the absence of exhaustion of that
remedy, the action must be dismissed. . . . [W]hen a
party has a statutory right of appeal from the decision
of an administrative agency, he may not, instead of
appealing, bring an independent action to test the very
issue which the appeal was designed to test.’’ (Citations
omitted; internal quotation marks omitted.) Caltabiano
v. L & L Real Estate Holdings II, LLC, 122 Conn. App.
751, 758–59, 998 A.2d 1256 (2010). Moreover, as a gen-
eral rule, a party’s failure to appeal from the action of
a municipal land use authority generally renders that
action final such that corrective action is no longer
subject to review by a court. Upjohn Co. v. Zoning
Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793(1992).
With these general principles in mind, we turn now
to the relevant statutory provisions. Section 22a-43 (a)
provides in relevant part: ‘‘[A]ny person owning or occu-
pying land which abuts any portion of land within, or
is within a radius of ninety feet of, the wetland or water-
course involved in any regulation, order, decision or
action made pursuant to [certain] sections may, within
the time specified in subsection (b) of section 8-8, from
the publication of such regulation, order, decision or
action, appeal to the superior court for the judicial
district where the land affected is located . . . .’’ Gen-
eral Statutes § 8-8 (b)11 provides in relevant part:
‘‘Except as provided in subsections (c), (d) and (r) of
this section . . . any person aggrieved by any decision
of a board . . . may take an appeal to the superior
court for the judicial district in which the municipality
is located . . . . The appeal shall be commenced by
service of process in accordance with subsections (f)
and (g) of this section within fifteen days from the date
that notice of the decision was published as required
by the general statutes. . . .’’
This court’s decision in Caltabiano v. L & L Real
Estate Holdings II, LLC, supra, 122 Conn. App. 751,
provides guidance for our analysis of the plaintiffs’ first
claim. In Caltabiano, the plaintiffs appealed to the Supe-
rior Court from decisions made by the local zoning
board of appeals and zoning commission granting the
defendant’s requested variances and amendments to
zoning regulations pursuant to § 8-8 (b). Id., 755. The
court dismissed those appeals and the plaintiffs failed
to file a petition for certification to appeal to this court
pursuant to § 8-8 (o).12 Id. The plaintiffs thereafter com-
menced a separate civil action seeking injunctive relief
in which the first two counts attacked the decisions of
the board and zoning commission. Id., 756. The defen-
dant moved to dismiss counts one and two, claiming
that the court lacked subject matter jurisdiction
because the plaintiffs had failed to exhaust their admin-
istrative remedies. Id. The court granted the defendant’s
motion to dismiss counts one and two in their entirety.
Id., 756–57. On appeal to this court, the plaintiffs
claimed that they had exhausted their administrative
remedies by appealing from the original decisions of
the board and zoning commission and that therefore,
this court could hear their civil action seeking injunctive
relief. Id., 757. The plaintiffs went on to claim that even
if they had failed to exhaust their administrative reme-
dies, they fell within an exception to the exhaustion
doctrine because it would have been futile to appeal
further from the court’s decision. Id. This court found
that the plaintiffs’ arguments underlying their claim of
futility should have been raised in a direct appeal from
the action of the zoning board and that therefore, the
plaintiffs did not fall within the futility exception to the
exhaustion doctrine. Id., 760. We went on to note that
although the plaintiffs had not exhausted their adminis-
trative remedies, ‘‘a collateral attack may be justified
in exceptional cases in which a previously unchallenged
condition was so far outside what could have been
regarded as a valid exercise of zoning power that there
could not have been any justified reliance on it, or
in which the continued maintenance of a previously
unchallenged condition would violate some strong pub-
lic policy . . . .’’ (Internal quotation marks omitted.)
Id., 762. We determined that the plaintiffs had failed to
make such a showing and that therefore, the trial court
properly held that it lacked subject matter jurisdiction.
Id., 762–63.
In the present case, the plaintiffs failed to appeal
the commission’s decision granting the defendants a
wetlands permit in 2006 although, as abutting landown-
ers, they were aggrieved by the decision pursuant to
§ 22a-43 (a). The defendants argue that the plaintiffs’
present action challenging the permit is ‘‘nothing more
than a thinly veiled collateral attack on the [December]
2006 approval.’’ In finding that it lacked subject matter
jurisdiction, the court agreed with the defendants and
concluded that the plaintiffs simply were seeking to
render the 2006 permit decision ineffective by institut-
ing a separate civil action. Although the plaintiffs argue,
instead, that they are appealing the extension of the
defendants’ wetlands permit as opposed to the commis-
sion’s original permit approval in 2006, they also con-
tend that because injunctive relief from the
commission’s decision is necessary to prevent immedi-
ate and irreparable harm to them, exhaustion does not
apply to the case at hand. Specifically, the plaintiffs
assert that construction on the defendants’ property,
pursuant to the permit, would ‘‘cause irreparable harm
in a regulated wetland area affecting water runoff and
drainage to [the plaintiffs’] abutting property.’’ These
claims visibly attack the substance of the wetlands per-
mit, which, as the court pointed out, the plaintiffs could
have done in 2006 by appealing the approval pursuant
to both §§ 22a-43 (a) and 8-8 (b).
By application of the relevant statutes, the plaintiffs
should have filed their appeal with the Superior Court
no later than December 30, 2006, fifteen days after publi-
cation of the commission’s decision. Based upon our
review of the pleadings, transcripts, and the record, we
agree that the present action constitutes nothing more
than an attempt by the plaintiffs to attack collaterally
the substance of the defendants’ 2006 permit. See
DiLieto v. County Obstetrics & Gynecology Group,
P.C., 265 Conn. 79, 104, 828 A.2d 31 (2003) (‘‘[T]he
interpretation of pleadings is always a question of law
for the court . . . . Our review of the trial court’s inter-
pretation of the pleadings therefore is plenary. We note
that [t]he modern trend, which is followed in Connecti-
cut, is to construe pleadings broadly and realistically,
rather than narrowly and technically. . . . [T]he com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties.’’ [Citations omitted; empha-
sis in original; internal quotation marks omitted.]).
Much like this court held in Caltabiano, the plaintiffs’
claim of irreparable harm should have been raised in
a direct appeal from the commission’s permit approval
in 2006. Because the plaintiffs failed to appeal the 2006
permit approval to the Superior Court within fifteen
days of publication, as provided for by statute, the plain-
tiffs failed to exhaust their administrative remedies. The
plaintiffs may not now commence an action that should
have been filed in 2006 by claiming that they are
attacking the permit extension—an argument we
address in the second part of this opinion—and not the
original approval of the wetlands permit. The court thus
properly concluded that the plaintiffs’ failure to exhaust
their available remedies deprived it of subject matter
jurisdiction to address the validity of the defendants’
wetlands permit.
II
The plaintiffs next claim that the court erroneously
concluded that the wetlands permit properly was
extended by operation of law. Specifically, they argue
that: (1) the court’s reliance on § 22a-42a (g) was mis-
placed and that notice of the permit extension was
required before the extension was granted; and (2) the
expiration date of the permit was not tolled because
of the defendants’ appeal from the denial of their two
requested variances. After considering all of the plain-
tiffs’ arguments related to this claim, we conclude it
has no merit.
The following additional facts are relevant to the
resolution of the plaintiffs’ second claim. While the
defendants’ appeal from the denial of the requested
variances was pending in the Superior Court, the defen-
dants’ counsel wrote to the commission on November
21, 2008, alerting it to the fact that the defendants were
in the process of appealing a variance denial and that,
pursuant to Fromer v. Two Hundred Post Associates,
32 Conn. App. 799, 631 A.2d 347 (1993), the defendants
were requesting an extension of the wetlands permit.
After the petition filed by Megan Bochanis and John
Bochanis for certification to appeal to this court from
the Superior Court’s judgment sustaining the defen-
dants’ zoning appeal was denied on October 14, 2009,
the defendants’ counsel wrote to the commission again
requesting that, pursuant to Fromer, it extend the defen-
dants’ permit until October 14, 2011. On November 16,
2009, the commission sent the defendants’ counsel a
letter confirming that ‘‘[b]ased upon past practice on
similar permit expiration issues,’’ the permit would be
extended until October 14, 2011.
A
The plaintiffs claim that the court’s reliance on § 22a-
42a (g) was misplaced because subsection (g) did not
exist in 2006, when the permit initially was approved
by the commission. Instead, the plaintiffs assert, the
court should have applied § 22a-42a (d) (1) and (2).13
The plaintiffs also contend that regardless of which
statute applies, notice of the commission’s action was
required before the permit extension was approved.
We disagree.
On July 2, 2009, the General Assembly enacted No.
01-181 of the Public Acts, adding subsection (g) to § 22a-
42a, which provided: ‘‘Notwithstanding the provisions
of subdivision (2) of subsection (d) of this section, any
permit issued under this section during the period from
July 1, 2006, to July 1, 2009, inclusive, shall expire not
less than six years after the date of such approval. Any
such permit shall be renewed upon request of the permit
holder unless the agency finds that there has been a
substantial change in circumstances that requires a new
permit application or an enforcement action has been
undertaken with regard to the regulated activity for
which the permit was issued, provided no such permit
shall be valid for more than eleven years.’’14
Because we must examine the language of § 22a-42a
(g), we note at the outset that: ‘‘The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect
to the apparent intent of the legislature. . . . [General
Statutes] § 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . A statute is ambiguous if, when
read in context, it is susceptible to more than one rea-
sonable interpretation.’’ (Internal quotation marks omit-
ted.) Hartford/Windsor Healthcare Properties, LLC v.
Hartford, 298 Conn. 191, 197–98, 3 A.3d 56 (2010).
The original permit, which was issued in December,
2006, falls directly within the time frame specified in
subsection (g) of § 22a-42a, which extended, by opera-
tion of law, the permit expiration date to ‘‘not less than
six years after the date of such approval.’’ The fact that
subsection (g) did not exist at the time of the original
permit approval in 2006 is irrelevant as the statute
clearly states that permits issued ‘‘from July 1, 2006,
to July 1, 2009’’ would be extended. Such language is
unambiguous and is not susceptible to more than one
reasonable interpretation.
Although the plaintiffs assert, instead, that § 22a-42a
(d) (1) and (2) is applicable to the present dispute, the
plain language of subsections (d) and (g) negates the
plaintiffs’ argument. Subsection (d) (1) states that it
applies to the ‘‘granting, denying or limiting’’ of a permit
and does not refer to permit extensions in any capacity.
On the other hand, subsection (g) explicitly states that
permits falling within the specified time frame will be
extended ‘‘[n]otwithstanding the provisions of subdivi-
sion (2) of subsection (d) of this section . . . .’’ Based
on our plain reading of § 22a-42a, subsection (g) clearly
applies to permit extensions by extending permits,
within the specified time period, by operation of law.
If the General Assembly had intended to encompass
subsection (d) (1) and (2) into the provisions of subsec-
tion (g), it would have explicitly done so. As a general
rule, ‘‘if the language of a statute is plain and unambigu-
ous, we need look no further than the words themselves
because we assume that the language expresses the
legislature’s intent.’’ (Internal quotation marks omit-
ted.) State v. Denby, 235 Conn. 477, 481, 668 A.2d 682(1995). Reading § 22a-42a differently would not give
effect to the apparent intent of the legislature based
upon a plain reading of the statute.
The plaintiffs also claim that notice of the commis-
sion’s action was required before the permit was
extended. This argument must also fail as there is noth-
ing in the statute to indicate that either actual or con-
structive notice is required before the permit is
extended by operation of law. See Luce v. United Tech-
nologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998)
(‘‘The process of statutory interpretation involves a rea-
soned search for the intention of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of this case . . . . In seeking to
determine that meaning, we look to the words of the
statute itself, to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter. . . . It is
the duty of the court to interpret statutes as they are
written . . . and not by construction read into statutes
provisions which are not clearly stated.’’ [Citations
omitted; internal quotation marks omitted.]).
B
The plaintiffs next claim that the court improperly
concluded that the permit’s expiration date was tolled
because of the defendants’ appeal from the denial of
two requested variances. We disagree.
This court’s holdings in both Fromer v. Two Hundred
Post Associates, supra, 32 Conn. App. 799, and Dean-
Moss Family Ltd. Partnership v. Five Mile River
Works, Inc., 130 Conn. App. 363, 23 A.3d 745 (2011)
(Dean-Moss), are instructive as to this final claim of the
plaintiffs’. In Fromer, we held that a permit to conduct a
regulated activity runs with the land and not the appli-
cant. We also went on to conclude that where a valid
permit was issued to conduct a regulated activity within
a specified time period and an appeal from the granting
of a permit was taken, the time period within which
to conduct the regulated activity was tolled until all
litigation had been completed. Fromer v. Two Hundred
Post Associates, supra, 802. Importantly, in Dean-Moss,
we held that the rationale in Fromer tolling a permit’s
expiration in the context of administrative appeals also
applied to actions seeking injunctive relief. In so finding,
we recognized that the defendant’s actions in Dean-
Moss opposing the granting of the plaintiff’s coastal site
plan applications and its subsequent actions challenging
the validity of a related parking easement were the
cause of the lapse of time that resulted in the expiration
of those approvals. Dean-Moss, supra, 375.
Notwithstanding the fact that the permit in the pre-
sent case was extended by operation of law pursuant
to the plain meaning of § 22a-42a (g), the court properly
concluded that the permit’s expiration date was also
tolled pursuant to Fromer and Dean-Moss. The defen-
dants’ wetlands permit became effective on December
15, 2006, and was originally set to expire on December
15, 2008. The petition filed by Megan Bochanis and John
Bochanis for certification to appeal to this court from
the Superior Court’s judgment sustaining the defen-
dants’ zoning appeal was not denied by this court until
October 14, 2009. Much like this court reasoned in
Fromer, if the defendants had begun construction dur-
ing the pendency of their zoning appeal to the Superior
Court, their actions might have been considered ‘‘reck-
less conduct’’ because the defendants’ permit—like the
permit at issue in Fromer—was conditioned on
obtaining the necessary zoning approvals, permits, or
variances before any work could begin.15 Furthermore,
if the defendants had disturbed the wetlands and then
lost their zoning appeal, they would have had to restore
the wetlands.16
The plaintiffs argue that Fromer is distinguishable
because the defendants’ wetlands permit, unlike the
permit at issue in Fromer, clearly states that a court
appeal will not automatically extend the permit. This
language, the plaintiffs argue, is evidence that the com-
mission and board ‘‘explicitly contemplated the fact
that a court action may delay work in accordance with
the wetlands permit.’’ Agreeing with the plaintiffs’ argu-
ment would require us to not only ignore the language
of § 22a-42a (g) but also the holdings of both Fromer
and Dean-Moss. This we cannot do.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer in this opinion to Frances Sweeney and Kevin Sweeney collec-
tively as the defendants, and to them individually by name. We note that
each Sweeney occupies the same legal position as the other as owners of
the property involved.
On March 28, 2012, the commission and the board filed a motion to
dismiss. On March 29, 2012, the defendants filed a motion to dismiss in
which they joined that prior motion. Accordingly, the court treated the
defendants as being in the same legal position as the commission and the
board for the purposes of adjudicating the motions to dismiss.
2
Although the plaintiffs briefed the second issue as two separate issues,
namely, that the court erroneously concluded that the permit was properly
renewed and that the permit was extended based upon the defendants’
appeal from the denial of two requested variances, we address both issues
together as they are related to the overriding issue of whether the defendants’
wetlands permit was properly extended.
3
General Statutes § 22a-42a was amended by No. 09-181 of the Public
Acts, which added subsection (g). Hereinafter, unless otherwise indicated,
all references to § 22a-42a in this opinion are to the 2010 supplement to
the statute.
4
We note at the outset that the plaintiffs argue on appeal that they are
contesting only the extension of the defendants’ wetlands permit and not,
as the defendants claim, the substance of the permit as granted in 2006 and
that therefore, the court did have subject matter jurisdiction. On the basis
of our review we conclude that the plaintiffs are contesting both the validity
of the defendants’ wetlands permit as well as the propriety of the permit
extension as a distinct procedural matter. While we conclude that the court
did not have subject matter jurisdiction to address the substance of the
wetlands permit itself due to the plaintiffs’ failure to exhaust their administra-
tive remedies, the court did have jurisdiction to address the plaintiffs’ claim
concerning the permit extension as a separate matter. Therefore, to the
extent that the plaintiffs were contesting the permit extension, we also
review that claim on appeal.
5
John McMillan and Lori McMillan also own land abutting the defendants’
property and were added as plaintiffs in the present action.
6
General Statutes (Supp. 2010) § 22a-42a (c) (1) provides in relevant
part: ‘‘The inland wetlands agency shall not hold a public hearing on such
application unless the inland wetlands agency determines that the proposed
activity may have a significant impact on wetlands or watercourses, a petition
signed by at least twenty-five persons who are eighteen years of age or
older and who reside in the municipality in which the regulated activity is
proposed, requesting a hearing is filed with the agency not later than fourteen
days after the date of receipt of such application, or the agency finds that
a public hearing regarding such application would be in the public interest.
An inland wetlands agency may issue a permit without a public hearing
provided no petition provided for in this subsection is filed with the agency
on or before the fourteenth day after the date of receipt of the applica-
tion. . . .’’
7
The commission approved the permit with conditions and notice of
such conditional approval was included in the Fairfield Citizen News. The
commission had the authority to grant the permit only upon the defendants’
fulfillment of certain conditions pursuant to General Statutes (Supp. 2010)
§ 22a-42a (d) (1), which provides, in relevant part: ‘‘In granting a permit the
inland wetlands agency, or its agent, may grant the application as filed or
grant it upon other terms, conditions, limitations or modifications of the
regulated activity which are designed to carry out the policy of sections
22a-36 to 22a-45, inclusive. . . .’’
Conditional approvals of wetlands permit applications have also been
held permissible by this court as well as by our Supreme Court. See Finley
v. Inland Wetlands Commission, 289 Conn. 12, 42, 949 A.2d 569 (2008)
(listing cases from this court and our Supreme Court involving conditional
approvals). We note that the conditional nature of the permit approval does
not affect the plaintiffs’ exhaustion argument. See Canterbury v. Deojay,
114 Conn. App. 695, 712–14, 971 A.2d 70 (2009) (holding that because defen-
dants had failed to appeal one of wetlands permit conditions within time
limit delineated in General Statutes § 8.8 [b], they had failed to exhaust their
administrative remedies, which rendered commission’s action final).
8
Practice Book § 10-33 provides: ‘‘Any claim of lack of jurisdiction over the
subject matter cannot be waived; and whenever it is found after suggestion of
the parties or otherwise that the court lacks jurisdiction of the subject
matter, the judicial authority shall dismiss the action.’’
9
A motion to dismiss is the appropriate vehicle for challenging a court’s
lack of subject matter jurisdiction pursuant to Practice Book § 10-30 (a),
which provides in relevant part: ‘‘A motion to dismiss shall be used to assert
(1) lack of jurisdiction over the subject matter . . . .’’
10
The plaintiffs argue that they also fall within a second exception to the
exhaustion doctrine because the commission’s action extending the permit’s
expiration date was void for lack of notice. See Upjohn Co. v. Zoning Board
of Appeals, 224 Conn. 96, 101, 616 A.2d 793 (1992) (‘‘[w]e have thus regarded
a failure to provide the required published notice as a subject matter jurisdic-
tional defect rendering the zoning action void’’). Because we conclude, in
the second part of this opinion, that notice of the permit extension was not
required by statute, we need not address this argument with respect to the
plaintiffs’ first claim.
11
We use the current revision of General Statutes § 8-8 (b) for the purposes
of simplicity and ease of reference in this opinion. General Statutes (Rev.
to 2005) § 8-8 (b) provided in relevant part: ‘‘Except as provided in subsec-
tions (c), (d) and (r) of this section . . . any person aggrieved by any
decision of a board . . . may take an appeal to the superior court for the
judicial district in which the municipality is located. The appeal shall be
commenced by service of process in accordance with subsections (f) and
(g) of this section within fifteen days from the date that notice of the decision
was published as required by the general statutes. . . .’’ We note that the
fifteen day requirement is unchanged.
12
General Statutes § 8-8 (o) provides in relevant part: ‘‘There shall be no
right to further review except to the Appellate Court by certification for
review, on the vote of two judges of the Appellate Court so to certify and
under such other rules as the judges of the Appellate Court establish. . . .’’
13
General Statutes (Supp. 2010) § 22a-42a (d) (1) provides in relevant part:
‘‘The applicant shall be notified of the agency’s decision by certified mail
within fifteen days of the date of the decision . . . .’’
General Statutes (Supp. 2010) § 22a-42a (d) (2) provides in relevant part:
‘‘Any permit issued under this section for any other activity shall be valid
for not less than two years and not more than five years. . . .’’
14
General Statutes § 22a-42a (g) provides: ‘‘Notwithstanding the provisions
of subdivision (2) of subsection (d) of this section, any permit issued under
this section prior to July 1, 2011, that has not expired prior to May 9, 2011,
shall expire not less than nine years after the date of such approval. Any
such permit shall be renewed upon request of the permit holder unless the
agency finds that there has been a substantial change in circumstances
that requires a new permit application or an enforcement action has been
undertaken with regard to the regulated activity for which the permit was
issued, provided no such permit shall be valid for more than fourteen years.’’
15
Paragraph eleven of the standard conditions of approval for the defen-
dants’ wetlands permit states: ‘‘If the activity authorized by the inland wet-
lands permit also involves activity or a project that requires zoning or
subdivision approval, special permit, variance, or special exception, no work
pursuant to the wetlands permit may begin until such approval is obtained.’’
16
General Statutes § 22a-44 (b) provides in relevant part: ‘‘The Superior
Court, in an action brought by the commissioner, municipality, district or
any person, shall have jurisdiction to restrain a continuing violation of said
sections, to issue orders directing that the violation be corrected or removed
and to assess civil penalties pursuant to this section. All costs, fees and
expenses in connection with such action shall be assessed as damages
against the violator together with reasonable attorney’s fees which may be
allowed, all of which shall be awarded to the commissioner, municipality,
district or person which brought such action. All penalties collected pursuant
to this section shall be used solely by the Commissioner of Energy and
Environmental Protection (1) to restore the affected wetlands or water-
courses to their condition prior to the violation, wherever possible, (2) to
restore other degraded wetlands or watercourses, (3) to inventory or index
wetlands and watercourses of the state, or (4) to implement a comprehensive
training program for inland wetlands agency members.’’