Berka v. Middletown

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GEORGE BERKA v. CITY OF MIDDLETOWN
(AC 41902)
GEORGE BERKA v. CITY OF MIDDLETOWN
(AC 42138)
GEORGE BERKA v. CITY OF MIDDLETOWN
(AC 42139)
GEORGE BERKA v. CITY OF
MIDDLETOWN ET AL.
(AC 42206)
Lavine, Elgo and Bear, Js.
Syllabus
The plaintiff filed four separate appeals against the defendant city of Middle-
town, challenging, inter alia, the issuance of blight orders against certain
of the plaintiff’s real property, and the rejection of his application for
a special exception to operate a sober house at the same property.
The trial court granted the defendant’s motions to dismiss the four
complaints for lack of subject matter jurisdiction, from which the plain-
tiff filed separate appeals to this court. Held:
1. In the appeal in Docket No. AC 41902, the plaintiff could not prevail on
his claim that the city’s blight ordinance violated, inter alia, his due
process rights, as the trial court did not err in dismissing the plaintiff’s
appeal for lack of subject matter jurisdiction; the plaintiff had failed to
exhaust his administrative remedies when he prematurely filed the
appeal directly from the issuance of the blight citation, and prior to the
defendant issuing a failure to pay fines notice in violation of the proce-
dure as set forth by statute (§ 7-152c), and, therefore, there was no
ruling by a hearing officer from which the plaintiff could have properly
appealed to the trial court.
2. In the appeal in Docket No. AC 42138, this court lacked subject matter
jurisdiction over the appeal, as the plaintiff failed to timely seek from
this court certification for review of the judgment of dismissal, pursuant
to statute (§ 8-8 (o)); the plaintiff never received the requisite affirmative
vote of two judges that would have allowed him to appeal to this court
and, accordingly, this appeal was dismissed.
3. In the appeal in Docket No. AC 42139, the trial court improperly granted
the defendant’s motion to dismiss the appeal for lack of an actual contro-
versy with respect to the plaintiff’s assertion of constitutional claims in
an individual capacity challenging the defendant’s blight ordinance; the
defendant submitted uncontroverted evidence that it had issued blight
citations and fines to the plaintiff pursuant to the challenged ordinance
with respect to the plaintiff’s property, and the trial court, having failed
to construe the self-represented plaintiff’s complaint in the broad and
realistic manner as required by our case law, did not conduct an examina-
tion of the plaintiff’s individual constitutional claims as required and,
although this court offered no view as to the merits of the plaintiff’s
individual constitutional claims, the trial court could afford practical
relief to the plaintiff if he ultimately proves that some or all of the
provisions of the applicable statute (§ 7-152c) establishing a citation
hearing procedure or the city’s blight ordinance violated his constitu-
tional rights.
4. In the appeal in Docket No. AC 42206, the trial court did not err in granting
the defendant’s motion to dismiss the plaintiff’s complaint, as the defen-
dant’s withdrawal of the blight citation issued to the plaintiff on May
27, 2016, rendered moot the claims in the action he filed on May 8, 2018;
no action had been taken against the plaintiff pursuant to the May 27,
2016 citation, and there was no practical relief that the court could grant
the plaintiff.
Argued October 23, 2019—officially released February 11, 2020
Procedural History
Action, in the first case, challenging, inter alia, the
defendant’s issuance of a blight citation on certain of
the plaintiff’s real property, and action, in the second
case, challenging a certain zoning decision made by
the defendant’s planning and zoning commission, and
action, in a third case, seeking to invalidate a certain
ordinance of the defendant, and action, in a fourth case,
challenging the issuance of a blight citation by the
named defendant on certain of the plaintiff’s real prop-
erty, brought to the Superior Court in the district of
Middletown, where the trial court, Aurigemma, J.,
granted the defendant’s motion to dismiss in the first
case and rendered judgment thereon, from which the
plaintiff appealed; thereafter, the trial court, Domn-
arsks, J., granted the defendant’s motions to dismiss
in the second and third cases and rendered judgment
thereon, from which the plaintiff filed separate appeals;
subsequently, the court, Domnarski, J., granted the
named defendant’s motion to dismiss in the fourth case
and rendered judgment thereon, from which the plain-
tiff appealed. Judgments in Docket Nos. AC 41902 and
AC 42206 affirmed; appeal in Docket No. AC 42138
dismissed; judgment in Docket No. AC 42139 affirmed
in part; reversed in part; further proceedings.
George Berka, self-represented, the appellant in each
case (plaintiff).
Brig Smith, for the appellee (defendant in first, sec-
ond and third cases and named defendant in fourth
case).
Opinion
BEAR, J. These four appeals pertain to certain real
property in Middletown owned by the self-represented
plaintiff, George Berka, and rented by him to multiple
individuals. Although neither the cases nor the appeals
have been officially consolidated, we write one opinion
for the purpose of judicial economy and assess the
claims made in each appeal.
The plaintiff appeals from four judgments of the Supe-
rior Court granting the motions of the defendant the
city of Middletown1 to dismiss the complaints in four
cases for lack of subject matter jurisdiction. In two of
his appeals to this court—Docket Nos. AC 41902 and AC
42206—the plaintiff’s claims relate either to a citation
issued to him in 2016 for conditions on his property
alleged to have violated the Middletown blight ordi-
nance, which citation subsequently was unilaterally
withdrawn by the defendant, or to a subsequent citation
issued to him in 2018 concerning essentially the same
alleged violations. In his appeal in Docket No. AC 42138,
the plaintiff challenges the denial of his application for
a special exception to operate a sober house. The appeal
in Docket No. AC 42139 concerns the propriety of the
court’s dismissal of the plaintiff’s petition to have the
blight ordinance invalidated on constitutional and other
grounds. We affirm the judgments of the court with
respect to the plaintiff’s claims asserted in Docket Nos.
AC 41902 and AC 42206. We dismiss Docket No. AC
42138 for lack of subject matter jurisdiction. We affirm
the court’s judgment in Docket No. AC 42139 with
respect to its dismissal of the plaintiff’s petition insofar
as it (1) asks the court to amend the Middletown blight
ordinance, and (2) is predicated on nonconstitutional
grounds but we reverse the judgment of the trial court
with respect to its dismissal of the plaintiff’s constitu-
tional claims asserted in an individual capacity.
The following undisputed facts and procedural his-
tory provide context for the plaintiff’s four appeals. The
plaintiff owns real property located at 5 Maple Place
in Middletown (property) and rents rooms in the house
on the property to individuals. The first appeal, Docket
No. AC 41902, relates to the plaintiff’s premature appeal
to the trial court from the 2018 blight notice and subse-
quent citation. On January 10, 2018, the plaintiff was
issued a notice of blight pursuant to chapter 120, article
11, § 120-25A of the City of Middletown Code of Ordi-
nances (ordinance),2 which was enacted in accordance
with General Statutes § 7-152c (a). On February 14,
2018, after the plaintiff failed to remedy the alleged
blighted conditions specified in the notice, the defen-
dant issued a blight citation to the plaintiff. The citation
provided the plaintiff fifteen days to pay the fines that
had been assessed for the violations listed in the notice
of blight. The plaintiff, however, brought an action in
the trial court on March 22, 2018, prior to the issuance
of a failure to pay fines notice in accordance with § 7-
152c and the ordinance, and prior to any administrative
hearing or assessment of fines as provided for by § 7-
152c and the ordinance. The defendant filed a motion
to dismiss the complaint in that action on May 24, 2018,
which was granted by the court on July 20, 2018. The
court concluded that it lacked subject matter jurisdic-
tion over the plaintiff’s claim because the plaintiff had
failed to exhaust his administrative remedies and,
accordingly, his claim was not ripe for judicial review.3
The second appeal to this court, Docket No. AC
42138, relates to the plaintiff’s request to the Middle-
town Planning and Zoning Commission (commission)
for a special exception to operate a sober house on
his property. The commission denied the application
without prejudice on the basis that the property was
not in compliance with a number of Middletown local
health and safety ordinances, for which the plaintiff
previously had been cited in 2016. The denial of the
application was published in the Hartford Courant on
February 22, 2018.4 Forty days later, on April 3, 2018,
the plaintiff appealed the denial to the trial court. The
defendant filed a motion to dismiss that appeal on June
29, 2018, which was granted by the court on September
18, 2018, for lack of subject matter jurisdiction.
The plaintiff’s third appeal to this court, Docket No.
AC 42139, is from the dismissal of his petition to have
the court invalidate or, in the alternative, amend the
blight ordinance. On May 8, 2018, the plaintiff filed a
‘‘petition to overturn blight ordinance.’’ On June 28,
2018, the defendant filed a motion to dismiss the plain-
tiff’s petition, which the court granted on nonjusticiabil-
ity grounds on September 18, 2018.
The fourth matter on appeal, Docket No. AC 42206,
involves the defendant’s unilateral withdrawal of the
2016 citation to the defendant. The plaintiff was issued
a citation on May 27, 2016, for essentially the same
underlying blight and city health code violations con-
tained in the subsequent January 10, 2018, blight notice
to him. The plaintiff was in the process of appealing
that citation when the defendant unilaterally withdrew
it on July 22, 2016.5 The plaintiff thereafter withdrew
his 2016 appeal. Almost two years later, on May 8, 2018,
the plaintiff served a complaint alleging that the defen-
dant had attempted to deprive him of his constitutional
rights by issuing the 2016 blight citation. At oral argu-
ment in the trial court, and in his brief on appeal, he
claims that the defendant’s withdrawal of the citation
was evidence of its consciousness of guilt. The defen-
dant filed a motion to dismiss that complaint on July
2, 2018. On October 17, 2018, the court granted the
defendant’s motion to dismiss the plaintiff’s complaint
for lack of subject matter jurisdiction on the basis of
mootness.
We first set forth the applicable standard of review
when considering a trial court’s granting of a motion
to dismiss. ‘‘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 motion to dismiss tests, inter alia, whether, on the
face of the record, the court is without jurisdiction.
. . . [O]ur review of the trial court’s ultimate legal con-
clusion and resulting grant of the motion to dismiss
will be de novo. . . . Factual findings underlying the
court’s decision, however, will not be disturbed unless
they are clearly erroneous. . . . The applicable stan-
dard of review for the denial of a motion to dismiss,
therefore, generally turns on whether the appellant
seeks to challenge the legal conclusions of the trial
court or its factual determinations. . . .
‘‘When a . . . court decides a jurisdictional 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 allegations, constru-
ing 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. . . . [I]n determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Citations omitted; internal quotation marks omitted.)
Hayes Family Ltd. Partnership v. Glastonbury, 132
Conn. App. 218, 221–22, 31 A.3d 429 (2011).
We address each appeal separately. Additional facts
will be set forth as necessary.
I
AC 41902
In Docket No. AC 41902, the plaintiff appeals from
the court’s granting of the defendant’s motion to dismiss
the plaintiff’s appeal for lack of subject matter jurisdic-
tion. On appeal to this court, the plaintiff claims that
the Middletown blight ordinance, as applied to him,
violates his due process and other rights. Specifically,
he claims, inter alia, that the ordinance is difficult for
an ordinary person to understand, that the appeal pro-
cess is overly complicated, and that the fines imposed
for violations are oppressively high. The following facts
are relevant to this appeal.
The defendant issued to the plaintiff a notice of blight
on January 10, 2018, and, on February 14, 2018, the
defendant issued to the plaintiff a blight citation. The
defendant issued a failure to pay fines notice to the
plaintiff on March 28, 2018. Under § 120-25A of the
ordinance, the plaintiff may seek a hearing in front of
a citation hearing officer within ten days of the issuance
of a failure to pay fines notice. There is no provision
either in § 7-152c or the ordinance permitting an admin-
istrative appeal from the notice of blight or the blight
citation. The plaintiff, moreover, filed an appeal from
the issuance of the citation directly to the Superior
Court on March 22, 2018—six days before the failure
to pay fines notice was issued, and before he had filed
any administrative appeal. At the time of filing his
appeal to the court, the plaintiff did not have the right,
pursuant either to § 7-152c or the ordinance, to seek
administrative review by a Middletown administrative
hearing officer. The plaintiff’s first opportunity for an
administrative hearing arose, pursuant to § 7-152c and
the ordinance, only after the failure to pay fines notice
was issued by the defendant on March 28, 2018.
‘‘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. . . . The exhaustion doc-
trine reflects the legislative intent that such issues be
handled in the first instance by local administrative
officials in order to provide aggrieved persons with
full and adequate administrative relief, and to give the
reviewing court the benefit of the local board’s judg-
ment. . . . It also relieves courts of the burden of pre-
maturely deciding questions that, entrusted to an
agency, may receive a satisfactory administrative dispo-
sition and avoid the need for judicial review.’’ (Citations
omitted; internal quotation marks omitted.) Simko v.
Ervin, 234 Conn. 498, 503–504, 661 A.2d 1018 (1995).
In the present case, the plaintiff was required to
receive a failure to pay fines notice in order for his
right to an administrative review by a hearing officer
to arise. The plaintiff, however, filed his appeal to the
Superior Court prior to receiving a failure to pay fines
notice. Therefore, at the time the plaintiff appealed to
the court, he did not have the right to an administrative
remedy by an appeal to a hearing officer. No administra-
tive hearing had occurred, and there was no ruling by
a hearing officer from which the plaintiff could appeal
to the court. Accordingly, the court did not err in dis-
missing the plaintiff’s appeal for lack of subject matter
jurisdiction. Therefore, we affirm the judgment of the
court dismissing the plaintiff’s administrative appeal in
Docket No. AC 41902.
II
AC 42138
In Docket No. AC 42138, the plaintiff appeals from
the court’s granting of the defendant’s motion to dismiss
the plaintiff’s zoning appeal on the basis that his appeal
to the court was untimely. Specifically, the plaintiff
claims that, although the denial of his application to
operate a sober house was published in the Hartford
Courant on February 22, 2018, the actual date of denial
should be recognized as being March 22, 2018, because
that is the date the plaintiff actually became aware of
the denial. The plaintiff did not seek permission from
this court to file the present appeal and, accordingly,
we lack subject matter jurisdiction to hear this claim.
General Statutes § 8-8 (o) governs Superior Court and
Appellate Court review of zoning commission deci-
sions. On September 24, 2018, the date of the plaintiff’s
zoning appeal to this court, § 8-8 (o) provided: ‘‘There
shall be no right to further review [of judgments ren-
dered by the Superior Court] 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. . . .’’ (Emphasis added.)
It is undisputed that, in the present appeal, the plain-
tiff did not timely seek from this court certification
for review of the judgment of dismissal. He, therefore,
never received the requisite affirmative vote of two
judges that would have allowed him, in September or
October, 2018, to appeal to this court. Accordingly,
because no such certification was granted in this case,
this court lacks subject matter jurisdiction over the
appeal.6 Therefore, we dismiss the plaintiff’s appeal in
Docket No. AC 42138.
III
AC 42139
In Docket No. AC 42139, the plaintiff appeals from
the court’s granting of the defendant’s motion to dismiss
his ‘‘petition to overturn blight ordinance’’ on nonjusti-
ciability grounds. We reverse the decision of the court
only with respect to the constitutional challenges
alleged by the plaintiff in that petition in his individ-
ual capacity.
Before considering the merits of the plaintiff’s claim,
we first review the state of the record before us and
the facts contained therein. It is undisputed that, on
February 14, 2018, the defendant issued a blight citation
to the plaintiff regarding the property.7 It also is undis-
puted that, on March 22, 2018, the plaintiff commenced
an appeal of that blight citation in the Superior Court
for the judicial district of Middlesex.
On May 8, 2018, the plaintiff initiated an action seek-
ing to invalidate the blight ordinance. The plaintiff com-
menced a third civil action that same day, which is the
subject of Docket No. AC 42206; see part IV of this
opinion; and which alleged due process violations stem-
ming from a blight citation issued to the plaintiff by
the defendant in 2016. The record thus unequivocally
indicates, and the defendant on appeal concedes, that
two related actions regarding the propriety of blight
citations issued to the plaintiff regarding his property
were pending in the same courthouse at the time that
his ‘‘petition to overturn blight ordinance’’ was com-
menced.
His petition admittedly was not in the form of a com-
plaint in accordance with the rules of practice. See
Practice Book § 10-1.8 The plaintiff’s self-styled petition
sets forth general allegations regarding the defendant’s
blight ordinance without any reference to particular
properties or property owners. More specifically, the
petitioner alleged that ‘‘(1) in its current form, [the
blight ordinance] does not allow accused parties to
contest the charges before being fined, (2) it does not
grant accused parties the right to a speedy trial, (3) the
fines are excessive relative to the minor nature of the
infractions, (4) it does not adequately safeguard the
rights of property owners, (5) it has the potential to
unjustly inflict financial ruin, (6) it may be prejudicial
against property owners in certain cases, and (7) it
potentially violates many important constitutional safe-
guards, such as the rights to privacy, freedom of self-
expression, security in one’s possessions, and the prohi-
bition against the taking of one’s property without due
process of law.’’
In response, the defendant moved to dismiss the peti-
tion for lack of subject matter jurisdiction, arguing that
(1) no actual controversy existed between the parties,
(2) the plaintiff was purporting to bring the action on
behalf of all residents of the defendant municipality,
and (3) the controversy was nonjusticiable, in that it
properly was the prerogative of the defendant’s legisla-
tive body to provide redress of the alleged infirmities
in the blight ordinance. Significantly, the defendant
appended five exhibits to its memorandum of law in
support of that motion, including copies of the blight
citation, the failure to pay fines notice, and the assess-
ment of fines notice that the defendant issued to the
plaintiff in 2018, regarding the property. Those materials
thus were properly before the court when the issue
of justiciability was raised, as the substance of those
materials was not contested by the plaintiff.9
The plaintiff filed an objection to the motion to dis-
miss, in which he argued that ‘‘he absolutely does have
standing’’ because ‘‘[t]he determination of the contro-
versy will result in practical relief to [him by prohibiting
the defendant] from imposing this unjust ordinance on
him and his fellow property owners in the future.’’ The
plaintiff further averred that an actual controversy
existed ‘‘between or among the parties to the dispute
[because] the people of the [defendant municipality],
inclusive of the plaintiff, are in a real danger of losing
their homes without due process of law or just compen-
sation, in direct violation of their [fifth and fourteenth]
amendment rights.’’
By order dated September 18, 2018, the trial court,
Domnarski, J., granted the motion to dismiss. In that
order, the court concluded that (1) ‘‘[t]here is no actual
controversy between the parties,’’ and (2) the plaintiff’s
claims are not justiciable because ‘‘the court cannot
give practical relief to the plaintiff. Any repeal or amend-
ment of the blight ordinance must be done by municipal
action, not by the court.’’ On appeal, the plaintiff chal-
lenges the propriety of both determinations.
A
We first consider the actual controversy question. In
so doing, we are mindful that, in deciding a motion to
dismiss, the ‘‘court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in
a manner most favorable to the pleader.’’ (Emphasis
added.) Pamela B. v. Ment, 244 Conn. 296, 308, 709
A.2d 1089 (1998). ‘‘[I]n determining whether a court has
subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged.’’ (Internal quotation
marks omitted.) Connecticut Energy Marketers Assn.
v. Dept. of Energy & Environmental Protection, 324
Conn. 362, 385, 152 A.3d 509 (2016). Furthermore, it is
‘‘the established policy of the Connecticut courts to
be solicitous of [self-represented] litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
[self-represented] party. . . . The courts adhere to this
rule to ensure that [self-represented] litigants receive
a full and fair opportunity to be heard, regardless of
their lack of legal education and experience . . . . This
rule of construction has limits, however.’’ (Internal quo-
tation marks omitted.) Ajadi v. Commissioner of Cor-
rection, 280 Conn. 514, 549, 911 A.2d 712 (2006). ‘‘The
modern trend . . . is to construe pleadings broadly
and realistically, rather than narrowly and technically.’’
(Internal quotation marks omitted.) Oliphant v. Com-
missioner of Correction, 274 Conn. 563, 569, 877 A.2d
761 (2005). ‘‘[W]hile courts should not construe plead-
ings narrowly and technically, courts also cannot con-
tort pleadings in such a way so as to strain the bounds
of rational comprehension.’’ Henderson v. Commis-
sioner of Correction, 181 Conn. App. 778, 793, 189 A.3d
135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018).
In the present case, the plaintiff brought an action
challenging the validity of the defendant’s blight ordi-
nance, claiming, inter alia, that it violates certain consti-
tutional guarantees. In moving to dismiss that action,
the defendant submitted uncontroverted evidence indi-
cating that it had issued blight citations and fines to
the plaintiff pursuant to the ordinance with respect to
his property. The defendant likewise concedes, in its
appellate brief before this court, that the plaintiff’s
action to invalidate the blight ordinance arises ‘‘out of
the same underlying enforcement actions against his
rental property at 5 Maple Place.’’ In light of that conces-
sion, it is not surprising that the plaintiff, in objecting
to the defendant’s motion to dismiss, represented to
the court that this action was brought because ‘‘the
people of the [defendant municipality], inclusive of the
[p]laintiff, are in a real danger of losing their homes
without due process of law or just compensation.’’
(Emphasis added.)
In the proceedings in the trial court, the plaintiff, the
defendant, and the trial judge all were aware of the
multiple actions pending in that court regarding the
application of the blight ordinance to the plaintiff’s
property.10 The interrelatedness of those actions, which
the defendant on appeal expressly concedes, is borne
out by the pleadings in those related proceedings. Like
the trial court, this court properly may take judicial
notice of the filings in those related proceedings, which
unequivocally indicate that the plaintiff was contesting
the enforcement of the blight ordinance on his prop-
erty.11 See Wasson v. Wasson, 91 Conn. App. 149, 151
n.1, 881 A.2d 356 (‘‘[t]he Appellate Court, like the trial
court, may take judicial notice of files of the Superior
Court in the same or other cases’’ [internal quotation
marks omitted]), cert. denied, 276 Conn. 932, 890 A.2d
574 (2005); see also Karp v. Urban Redevelopment Com-
mission, 162 Conn. 525, 527, 294 A.2d 633 (1972)
(‘‘[t]here is no question [of] our power to take judicial
notice of files of the Superior Court, whether the file
is from the case at bar or otherwise’’); Folsom v. Zoning
Board of Appeals, 160 Conn. App. 1, 3 n.3, 124 A.3d 928
(2015) (taking ‘‘judicial notice of the plaintiff’s Superior
Court filings in . . . related actions filed by the
plaintiff’’).
Cognizant of our obligation to indulge every presump-
tion favoring subject matter jurisdiction, as well as to
provide reasonable latitude to self-represented parties;
see Maresca v. Allen, 181 Conn. 521, 521 n.1, 436 A.2d
14 (1980); we disagree with the court’s conclusion that
the plaintiff’s petition does not pertain to an actual
controversy between the parties. The court improperly
granted the motion to dismiss for lack of an actual con-
troversy.
B
We next consider the question of practical relief. In
dismissing the plaintiff’s action to invalidate the blight
ordinance, the court concluded that it ‘‘cannot give
practical relief to the plaintiff [because] any repeal or
amendment . . . must be done by municipal action,
not by the court.’’ To the extent that the plaintiff has
asserted constitutional claims in an individual capacity,
we disagree with the court.
‘‘[W]hen a question of constitutionality is raised,
courts must approach it with caution, examine it with
care, and sustain the legislation unless its invalidity is
clear.’’ State v. Long, 268 Conn. 508, 521, 847 A.2d 862,
cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed.
2d 340 (2004). To the extent that the self-represented
plaintiff in the present case attempts to assert constitu-
tional violations on behalf of the citizens of Middletown
generally, the plaintiff does not have standing to do
so. ‘‘The authorization to appear [as a self-represented
litigant] is limited to representing one’s own cause, and
does not permit individuals to appear [as a self-repre-
sented litigant] in a representative capacity.’’ Express-
way Associates II v. Friendly Ice Cream Corp. of Con-
necticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert.
denied, 230 Conn. 915, 645 A.2d 1018 (1994). Insofar as
the plaintiff in his petition has asserted claims on behalf
of the Middletown citizenry generally, the court prop-
erly granted the motion to dismiss such claims.
The plaintiff nonetheless was free to assert claims in
an individual capacity. Although not in the form
required under our rules of practice, the plaintiff pro-
vided ample notice that his petition was predicated, in
part, on constitutional grounds. Specifically, the plain-
tiff alleged, in relevant part, that the blight ordinance
‘‘violates many important constitutional safeguards,
such as the rights to privacy, freedom of self-expression,
security in one’s possessions, and the prohibition
against the taking of one’s property without due process
of law.’’ The petitioner also expressly invoked the first
amendment in that pleading.
‘‘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.’’ Gladstein v.
Goldfield, 325 Conn. 418, 421 n.3, 159 A.3d 661 (2017).
Construing the plaintiff’s petition in accordance with
the broad and realistic framework through which Con-
necticut courts are instructed to consider the pleadings
of self-represented litigants, we conclude that it con-
tains allegations of a constitutional dimension. It does
not ‘‘strain the bounds of rational comprehension’’;
Henderson v. Commissioner of Correction, supra, 181
Conn. App. 793; to acknowledge that at least some of
the plaintiff’s constitutional allegations are intended to
directly apply to him.
As a result, we disagree with the court’s conclusion
that it could not afford any practical relief to the plain-
tiff. It is well established that both this court and the
trial court have the jurisdiction to overturn state and
municipal legislation and ordinances that violate federal
and state constitutional protections.12 Because the
defendant filed a motion to dismiss the plaintiff’s peti-
tion, the structure of the petition as a complaint was
not challenged by the defendant. With our reversal of
the court’s judgment of dismissal insofar as it relates to
the plaintiff’s allegations of violations of his individual
constitutional rights, those allegations in the petition,
on remand, are before the court. The court could afford
practical relief to him if the plaintiff ultimately proves
that some or all of the provisions of § 7-152c or the
blight ordinance violated his constitutional rights.
In summary, on the basis of our thorough review of
the record and relevant case law, we conclude that the
court failed to construe the self-represented plaintiff’s
petition in the broad and realistic manner required by
our case law and, as a result, it did not conduct the
examination of the plaintiff’s individual constitutional
claims that our case law further requires. Accordingly,
we reverse the judgment of the court granting the defen-
dant’s motion to dismiss the plaintiff’s petition in
Docket No. AC 42139 with respect to the plaintiff’s
individual constitutional claims. In so doing, we offer
no view whatsoever as to the merits of those claims.13
IV
AC 42206
In Docket No. AC 42206, the plaintiff appeals from
the judgment of the court granting the defendant’s
motion to dismiss his complaint filed on May 8, 2018,
which challenged a blight citation issued by the defen-
dant on May 27, 2016, on the ground of mootness. The
defendant moved to dismiss the plaintiff’s complaint
on July 2, 2018, on the basis that the defendant had
withdrawn that blight citation on July 22, 2016, and that
no action had been taken against the plaintiff pursuant
to that citation, rendering the plaintiff’s appeal moot
because there was no practical relief that the court
could grant. On October 17, 2018, the court granted the
defendant’s motion to dismiss on the basis that the
withdrawal of the citation mooted the plaintiff’s claims,
and, therefore, the court lacked subject matter jurisdic-
tion over the appeal. We agree with the court.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction. . . . An actual
controversy must exist not only at the time the appeal
is taken, but also throughout the pendency of the
appeal. . . . When, during the pendency of an appeal,
events have occurred that preclude an appellate court
from granting any practical relief through its disposition
of the merits, a case has become moot.’’ (Citations
omitted; internal quotation marks omitted.) Renais-
sance Management Co. v. Barnes, 175 Conn. App. 681,
685–86, 168 A.3d 530 (2017).
Because the defendant’s withdrawal of the blight cita-
tion issued to the plaintiff on May 27, 2016, rendered
moot the claims in the complaint he filed on May 8,
2018, with respect to the citation, we conclude that the
court did not err in granting the defendant’s motion to
dismiss the plaintiff’s complaint.
The judgments in Docket Nos. AC 41902 and AC 42206
are affirmed; the appeal in Docket No. AC 42138 is
dismissed for lack of jurisdiction; the judgment in
Docket No. AC 42139 is reversed in part and the case
is remanded to the trial court for further proceedings
consistent with this opinion.
In this opinion the other judges concurred.
1
Linda S.K. Reed was also named as a defendant in the action that is
the subject of the appeal in Docket No. AC 42206. She is not a party to that
appeal and all references herein to the defendant are to the city of Mid-
dletown.
2
The City of Middletown Code of Ordinances, Chapter 120, Article II, § 120-
25A provides the city’s procedure for issuing and appealing blight citations.
3
The defendant issued to the plaintiff a failure to pay fines notice on
March 28, 2018, six days after the plaintiff initiated the action challenging
such fines. Section 7-152c provides that, following the issuance of a failure
to pay fines notice, the party to whom the notice has been issued has ten
days to appeal to an administrative hearing officer. The plaintiff timely
sought an administrative appeal. A hearing officer was assigned, and a
hearing was held on May 2, 2018. After the hearing, the hearing officer
issued a decision sustaining the city’s blight citation and denying the plain-
tiff’s claims. The plaintiff appealed this decision two days later on May 4,
2018, initiating an action currently pending in the trial court. On May 7,
2018, the hearing officer issued an amended hearing decision, again denying
the plaintiff’s claims.
4
The publication states in relevant part: ‘‘Notice of decision by the Middle-
town Planning and Zoning Commission at its regular meeting of February
14, 2018: 1. Denied without prejudice a proposed [s]pecial [e]xception to
Section 60.02.24 under the Americans with Disabilities Act to operate a
recovery home (sober house) at 5 Maple Place, Applicant/agent George
Berka SE 2017-7.’’
Additionally, during oral argument on the appeals, the defendant’s counsel
was questioned about whether the defendant also had sent to the plaintiff
by certified mail individual notice of its decision. See General Statutes § 8-
26e. The attorney for the defendant was unable to answer that question at
oral argument, but he subsequently sent to this court, with a copy to the
plaintiff, who did not object to the submission, a copy of the certified mail
notice to the defendant at his home address in Waterbury. If it is necessary
to do so, we take judicial notice of the certified mail to the plaintiff. See
Gamez-Reyes v. Biagi, 136 Conn. App. 258, 261 n.4, 44 A.3d 197, cert. denied,
306 Conn. 905, 52 A.3d 731 (2012).
5
In its brief and at oral argument in Docket No. AC 42206, the defendant
explained that, at the same time it had issued the blight citation to the
plaintiff, the state’s attorney’s office had brought a case against the plaintiff
for the same violations set forth in its blight citation. The defendant stated
that it withdrew the 2016 blight citation because of the duplicative nature
of the claims against the plaintiff set forth in the blight citation and the
claims against him being pursued by the state’s attorney.
6
We also note that, even if this appeal properly were before this court,
the plaintiff filed his appeal in the trial court on April 3, 2018—forty days
after the decision of the commission was published. General Statutes § 8-
8 (b) states in relevant part: ‘‘[A]ny person aggrieved by any decision of a
board, including . . . a special permit or special exception pursuant to
section 8-3c, 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 . . . within fifteen days from the date that notice of
the decision was published as required by the general statutes.’’ The plain-
tiff’s appeal was not filed within fifteen days of the date of publication and,
therefore, the trial court lacked subject matter jurisdiction over the claim.
See, e.g., Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195
Conn. 276, 283, 487 A.2d 559 (1985) (holding that court properly dismissed
plaintiff’s appeal when plaintiff failed to bring its appeal of zoning board
of appeals decision within fifteen days after publication of adequate notice
of decision as required by § 8-8). The plaintiff did not challenge the adequacy
of the published notice. See, e.g., id., 281–82.
7
Copies of that blight citation, as well as the failure to pay fines notice
and the assessment of fines notice issued by the defendant, all accompanied
the defendant’s motion to dismiss and, thus, properly were before the court
when the issue of justiciability was raised.
8
Practice Book § 10-1 provides in relevant part: ‘‘Each pleading shall
contain a plain and concise statement of the material facts on which the
pleader relies, but not of the evidence by which they are to be proved,
such statement to be divided into paragraphs numbered consecutively, each
containing as nearly as may be a separate allegation. . . .’’
9
We recognize that, as our precedent instructs, a court cannot decide a
motion to dismiss on the basis of ‘‘factual and legal memoranda of the
parties’’ when issues of fact are disputed. Bradley’s Appeal from Probate,
19 Conn. App. 456, 466, 563 A.2d 1358 (1989). Here, the materials furnished
to the court by the defendant are not disputed and demonstrate that the
plaintiff has been subject to actions to enforce the blight ordinance against
his property.
10
The record indicates that Judge Domnarski ruled on the present action
concerning the validity of the blight ordinance and the plaintiff’s appeal
from the denial of his application for a special exception to operate a sober
house on the property on September 18, 2018; on October 17, 2018, he
dismissed the plaintiff’s action regarding the 2016 blight citation.
11
We view the defendant’s representation in its appellate brief that the
present action arises ‘‘out of the same underlying enforcement actions
against [the] property at 5 Maple Place’’ as the plaintiff’s other civil actions
filed against the defendant in 2018, as an invitation to take judicial notice
of those related proceedings, if not a judicial admission. See, e.g., Rodia v.
Tesco Corp., 11 Conn. App. 391, 395, 527 A.2d 721 (1987) (‘‘[w]e view this
statement by the plaintiffs in their [appellate] brief as analogous to a judicial
admission and therefore binding on the plaintiffs’’).
12
This court may exercise concurrent jurisdiction with the federal courts
in cases arising under the federal constitution. See, e.g., Stratford v. Bridge-
port, 173 Conn. 303, 311, 377 A.2d 327 (1977) (‘‘[a]lthough it is true that
where the supremacy of federal law exists it requires that state courts apply
that law, the mere fact of such supremacy does not oust a state court
from jurisdiction’’).
13
We likewise reiterate the procedural posture of this case, which is a
dismissal on jurisdictional grounds. The question of whether the plaintiff’s
operative pleading can survive a motion to strike, therefore, is not presently
before us.
We further note that Practice Book § 10-60 (a) (1) provides in relevant
part that ‘‘[e]xcept as provided in Section 10-66, a party may amend his or
her pleadings or other parts of the record or proceedings at any time subse-
quent to that stated in the preceding section . . . [b]y order of judicial
authority. . . .’’ Whether to permit the plaintiff to amend his pleading pursu-
ant to that rule of practice ‘‘rests within the discretion of the trial court.’’
Martinez v. New Haven, 328 Conn. 1, 15 n.13, 176 A.3d 531 (2018).