DocketNumber: No. CV94 542469
Citation Numbers: 1995 Conn. Super. Ct. 2572
Judges: SCHIMELMAN, J.
Filed Date: 3/20/1995
Status: Non-Precedential
Modified Date: 7/5/2016
The facts as they apply to this Motion to Dismiss are not in dispute. Plaintiffs, People's Rights in a Clean Environment (PRICE), are a non-profit organization organized under the laws of Connecticut. The defendant is Timothy Keeney, who is being sued in his capacity as the Commissioner of the Department of Environmental Protection (DEP). Plaintiffs' complaint alleges in part:
Three of the plaintiffs have standing due to the fact that they own property that abuts the subject property of this action. Six other members of the group have standing because they reside in the neighborhood surrounding the subject property and are taxpayers of the town of Canterbury. The subject properties to this action are the Yaworski solid waste disposal site, the Yaworski Recycling Facility, and the Yaworski landfill, all located in Canterbury. Members of PRICE have notified the DEP several times over the past few years of several violations relative to solid waste disposal and recycling operations that have occurred at the three Yaworski sites. The violations include: emitting noxious odors, commencing operations prior to the permitted start time in the morning, maintaining excessive and intrusive noise, expanding solid waste piles to levels in excess of the permitted levels, failing to keep the gas recovery system from emitting noxious odors and emissions, disseminating airborne dust, scattering dirt and litter, failing to maintain proper cover over the solid waste on site, pooling standing water on waste piles, and allowing the presence of rats and other vermin. These violations constitute violations of state statute, permits, or DEP consent orders issued by the DEP. Despite receiving notice of the violations, the DEP has refused to enforce the conditions of permits issued to the Yaworskis by the DEP and has failed to issue cease and desist orders to remedy these statutory violations. The DEP's failure to act is in violation of General Statutes §
PRICE asks the court to issue a declaratory judgment that CT Page 2574 violations of the orders exist and to issue an order compelling the Commissioner to issue cease and desist orders as necessary to stop the violations occurring in the operation of the three Yaworski sites.
Defendant (DEP), filed a motion to dismiss the complaint on the following grounds; First, DEP claims that the statute on which PRICE relies does not allow PRICE to bring a private action against the commissioner to force him to exercise his discretionary duties; Second, PRICE has failed to exhaust all administrative remedies; Finally, DEP claims that PRICE has not made all persons with an interest in the lawsuit a party to the lawsuit as is required by Practice Book § 390(d).
PRICE argues that the court has jurisdiction to issue a declaratory judgment and for that reason, the motion to dismiss should be denied. PRICE cites General Statutes §
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v.State,
"Whenever the absence of jurisdiction is brought to the notice of the court . . . it must be taken and the matter passed upon before it can move one further step in the cause." Baldwin Pianoand Organ v. Blake,
DEP advances three arguments in support of its motion to CT Page 2575 dismiss. First, it argues that the Environmental Protection Act does not create a private cause of action for anyone seeking relief against the DEP. It cites Middletown v. Hartford ElectricLight Co.,
Second, DEP claims that PRICE has failed to exhaust all of its available remedies, such as intervening in previous administrative proceedings or taking timely appeals from agency decisions to the Superior Court. DEP argues that all of the claims made by PRICE were addressed at DEP hearings before permits were issued. Additionally, DEP contends that PRICE could have appealed these decisions pursuant to General Statutes §
In response, PRICE maintains that DEP misunderstands the essence of its complaint. PRICE asserts that it is not seeking a review of "substantive agency decisions", it is only seeking an order of enforcement. PRICE further argues that nothing in the Environmental Protection Act prevents it from bringing this action.
Additionally, PRICE states that it has not failed to exhaust its administrative remedies; General Statutes §
Finally, PRICE contends that the motion should not be granted on the basis of DEP's argument that all parties with an interest in the action have not been notified of the action. PRICE citesDawson v. Farr,
Declaratory judgment proceedings are appropriate for determining the validity of the regulations of an administrative agency. Young v. Chase,
The Environmental Protection Act is contained in General Statutes §§
"A declaratory judgment action is a special statutory proceeding under General Statutes 52-59, implemented by Practice Book Section 388 et seq." Rhodes v. Hartford,
When all persons having an interest in the subject matter of the complaint are parties or have reasonable notice of the action; Practice Book 390 (d); Pinnix v. LaMorte,
182 Conn. 342 ,343 ,438 A.2d 102 (1980); the Superior Court has subject matter jurisdiction in any action or proceeding to declare rights and other legal relations on request for such a declaration whether or not further relief is or could be claimed. General Statutes52-29 . See Connecticut Life Health Ins. Guaranty Assn. v. Jackson,173 Conn. 352 ,358-60 ,377 A.2d 1099 (1977). We have consistently construed this broad statutory grant of jurisdiction and the related Practice Book provisions liberally to serve their sound social purpose. Connecticut Savings Bank v. First National Bank Trust Co.,133 Conn. 403 ,409 ,51 A.2d 907 (1947). See Larke v. Morrissey,155 Conn. 163 ,167-68 ,230 A.2d 562 (1967). Thus, the Superior Court has subject matter jurisdiction over suits for declaratory relief despite the adequacy of other legal remedies. Connecticut Life Health Ins. Guaranty Assn. v. Jackson, supra, 359-60; Connecticut Savings Bank v. First National Bank Trust Co., supra, 409 . . . Whether the court, despite its jurisdiction over the subject matter, could properly grant declaratory relief in this case is a distinct question, which is properly raised by a motion to strike. Connecticut Life Health Ins. Guaranty Assn. v. Jackson, supra, 360.
England v. Coventry,
Defendant has not met that burden. Therefore, defendant's CT Page 2578 Motion to Dismiss is denied.
Schimelman, J.
Upson v. State , 190 Conn. 622 ( 1983 )
Tucker v. Board of Education , 190 Conn. 748 ( 1983 )
Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co. , 183 Conn. 108 ( 1981 )
Connecticut Life & Health Insurance Guaranty Ass'n v. ... , 173 Conn. 352 ( 1977 )
Hartford Electric Light Co. v. Water Resources Commission , 162 Conn. 89 ( 1971 )
Connecticut Savings Bank v. First National Bank , 133 Conn. 403 ( 1947 )
Baldwin Piano & Organ Co. v. Blake , 186 Conn. 295 ( 1982 )
Larke v. Morrissey , 155 Conn. 163 ( 1967 )
Pinnix v. LaMorte , 182 Conn. 342 ( 1980 )
England v. Town of Coventry , 183 Conn. 362 ( 1981 )