DocketNumber: No. 31 91 56
Citation Numbers: 1996 Conn. Super. Ct. 3806
Judges: LEHENY, J.
Filed Date: 4/25/1996
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiffs, Fairfield Resources Management, Inc. (FRM); Fairfield Resources, Inc. (FR); and Rock Acquisition Limited Partnership (RALP), appeal to the Superior Court, pursuant to General Statutes §
Background
On September 27, 1994, Joel Kanute applied for a permit to discharge explosives for Dyno at FR's quarry. (Return of Record [ROR], Item 26: October 21, 1994 letter from Wayne A. Gravius, Fire Marshal to Mr. Arthur Sibley, Jr. of Dyno New England, Inc., with a copy of the blasting permit attached.) On September 27, 1994, Gravius granted Kanute's permit application and provided that the blasting permit would expire on October 27, 1994. (ROR, Item 26.)
Subsequent to granting Dyno the blasting permit, the Town of Brookfield's office of the fire marshal recorded that it received numerous complaints regarding the blasting at FR's quarry. (ROR, Item 16: September 28, 1994 Blasting Complaint with September 28, 1994 report from DRS Consultants, Inc. to Fairfield Resources quarry attached; ROR, Item 18: October 6, 1994 Blasting Complaint; ROR, Item 20: October 12, 1994 Blasting Complaint; ROR, Item 22: October 21, 1994 Blasting Complaint.)
At the Brookfield Zoning Commission's regular meeting on October 13, 1994, the Commission denied the plaintiffs' request for a permit to remove "natural resources from Residential District R-80 amounting to 400,000 tons (180,000 cubic yards) of material per year by a maximum of up to 300 trucks per day, [and] involving excavating, blasting, screening, rock crushing and processing." (ROR, Item 24: Minutes of October 13, 1994 meeting of the Brookfield Zoning Commission, p. 8.) The Commission voted four to one to deny the plaintiffs' application because it conflicted with the Brookfield Zoning Regulations §§ 242-302.C.2, 302.C.2a, 302.4, 302.9, 302.F and 303.A. (ROR, Item 24, p. 9.)
On October 20, 1994, Francis J. Collins, counsel to the Brookfield Zoning Commission, responded to Gravius' request for advice as to whether he should allow blasting to continue at FR's quarry. (ROR, Item 25: October 20, 1994 letter from Attorney Francis J. Collins to Wayne A. Gravius, Fire Marshal, with attachments.) Attorney Collins wrote to Gravius stating "that no further blasting should be authorized . . . as the Brookfield Zoning Commission, at its October 13, 1994 meeting, denied Fairfield Resources's application for a natural resources removal permit. Any further mining . . . constitutes a violation of Section 242-3021 of the Brookfield Zoning Regulations." (ROR, Item 25.) CT Page 3808
Subsequently, Gravius sent Arthur Sibley, Jr., of Dyno, a letter dated October 21, 1994. In the letter, Gravius stated that based on the advice of Francis Collins, counsel to the Brookfield Zoning Commission, and upon confirmation by Town Attorney William McNamara, he had suspended Dyno's blasting permit for FR's location at 5 North Mountain Road because it violated Brookfield Zoning Regulations § 242-302. (ROR, Item 26: October 21, 1994 letter from Wayne A. Gravius, Fire Marshal to Mr. Arthur Sibley, Jr. of Dyno New England, Inc., with a copy of the blasting permit attached.) The letter continued that the suspension of the blasting permit began at noon on October 21, 1994. (ROR, Item 26.)
Gravius then faxed to Trooper Colon a copy of his letter to Arthur Sibley, Jr. (ROR, Item 27: October 21, 1994 facsimile from Wayne Gravius to Trooper Colon with attachments.) Thereafter, Gravius typed an undated document entitled "Comments" in which he recorded his actions between October 18, 1994 and October 21, 1994, when he suspended Dyno's blasting permit. (ROR, Item 28: Undated memo to the file of Wayne Gravius.)
On October 25, 1994, Gravius sent a letter to Attorney McNamara requesting that Attorney McNamara indicate in writing that he had advised Gravius to suspend the blasting permit because FR violated Brookfield Zoning Regulations § 242-302. (ROR, Item 29: October 25, 1994 letter from Wayne A. Gravius, Fire Marshal to Attorney William J. McNamara, Jr.)
Parties' Arguments
The plaintiffs argue that they were statutorily entitled to the blasting permit, which Gravius suspended on October 21, 1994. The plaintiffs also argue that Gravius and the Town of Brookfield lacked the authority to suspend the blasting permit. Further, the plaintiffs contend that only the State Fire Marshal can revoke a blasting permit, and then only for good cause. Additionally, the plaintiffs argue that the "defendants violated the plaintiffs' due process rights by summarily suspending and denying the plaintiffs' blasting permits without first providing plaintiffs with an opportunity to be heard." (Plaintiffs' Brief, p. 6.)
Moreover, the plaintiffs argue that the "decision of the defendant Gravius to revoke the blasting permit was illegal and/or improper because the defendant Gravius considered factors CT Page 3809 outside the statutory and regulatory requirements in making his decision. To wit, Attorney Francis Collins and First Selectman Bonnie Smith exerted improper influence over Gravius to revoke the blasting permit . . . ." (Plaintiffs' Brief, p. 12.) Last, the plaintiffs argue that Gravius should not have considered the alleged violation of the Brookfield Zoning Regulations at FR's quarry, when he made his determination regarding the blasting permits.
In response, the defendants argue that because "the Commissioner of Public Safety has the exclusive jurisdiction over the regulation of the storage, transportation and use of explosives . . . it necessarily follows that a local fire marshal acts as the agent of the Commissioner in issuing permits under the provisions of C.G.S. §
Additionally, the defendants argue that because "[i]t is a general rule that the court lacks jurisdiction to consider an appeal where no practical relief can flow to the appellant from the decision of the court," and this court is without the power to grant the relief requested by the plaintiffs, the court should dismiss this appeal. (Defendants' Brief, p. 9.) Specifically, the defendants argue that because the blasting permit contained an expiration date of October 27, 1994, the permit cannot be reinstated and, therefore, reversing the suspension of the permit would be meaningless. Further, the plaintiffs' requested legal fees in their claim for relief. The defendants, however, argue that the court does not possess the authority to grant such relief because an administrative appeal is a statutory remedy, and neither General Statutes §
Accordingly, the defendants argue that the court should dismiss this appeal because the plaintiffs failed to exhaust CT Page 3810 their administrative remedies, the plaintiffs joined neither Kanute nor Dyno, who are indispensable parties to the appeal, and the court cannot grant the plaintiffs' requested relief.
Discussion
I. Whether the plaintiffs failed to exhaust their administrative remedies.
The defendants in their brief set forth the statutory provisions governing the roles of the commissioner of the Department of Public Safety (DPS) and the local fire marshal under General Statutes §
The defendants argue that a local fire marshal acts as the agent of the DPS commissioner in issuing permits, pursuant to General Statutes §
The defendants' argument is meritless. The defendants fail to explain why Kanute and Dyno's alleged failure to exhaust their administrative remedies should prevent FRM and RA from filing this appeal with the Superior Court. (Emphasis added.) Further, the defendants cite to neither statutory provisions nor case law to support their argument.
II. Whether either Kanute or Dyno is an indispensable party to this appeal.
The defendants also argue that Kanute, as the "person who had CT Page 3811 the right and qualifications to apply for the [blasting] permit and to contest its suspension[,] is an indispensable party to the appeal." Further, the defendants argue that such a jurisdictional defect requires that the court dismiss the appeal. Neither Kanute nor Dyno are indispensable parties to this appeal, and the plaintiffs, FRM and RA, had the authority to bring this appeal, pursuant to General Statutes §
A plaintiff's failure to join a party as an indispensable party does not implicate a trial court's subject matter jurisdiction. Hilton v. New Haven,
In the present case, Gravius sent Arthur Sibley, Jr., of Dyno, a letter dated October 21, 1994, in which he stated that based on the advice of Francis Collins, counsel to the Brookfield Zoning Commission, and upon confirmation by Town Attorney William McNamara, he had suspended Dyno's blasting permit for FR's location at 5 North Mountain Road because it violated Brookfield Zoning Regulations § 242-302. (ROR, Item 26.) Gravius continued that the suspension of the blasting permit began at noon on October 21, 1994. (ROR, Item 26.) Dyno and Kanute are not indispensable parties to this appeal because the October 21, 1994 letter gave them their "notice and an opportunity to protect CT Page 3812 their interests" in this appeal. Further, neither Kanute's nor Dyno's "interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience."
Additionally, General Statutes §
III. Whether Gravius' suspension of Dyno's blasting permit violated the plaintiffs' right to due process.
General Statutes §
General Statutes §
Further, "[w]here local officials are in a principal-agent relationship with a state officer and are delegated the duty to perform what is mainly a state function and duty under the supervision of the state officer or agency, . . . the decision made is essentially a decision of the state agency . . ."McCarthy v. Town of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 285713 (October 15, 1993, Fuller, J.,
General Statutes §
General Statutes §
In Dadiskos v. Connecticut Real Estate Commission,
In PARCC Inc. v. Commission on Hospitals Health Care,
Upon determining that the plaintiff's license was revoked, the court held that the "defendant, therefore, was required by the UAPA to afford the plaintiff notice and an opportunity for a hearing before such license was revoked." Id., 142. The court, however, did not expound further upon what procedures were necessary "to afford the plaintiff notice and an opportunity for a hearing before such license was revoked."
Thus, in view of Dadiskos v. Connecticut Real EstateCommission, supra,
In the present case, Gravius granted Dyno's blasting permit application on September 27, 1994, and he provided that the CT Page 3816 blasting permit would expire on October 27, 1994. (ROR, Item 26.) Subsequently, Gravius sent Arthur Sibley, Jr., of Dyno, a letter dated October 21, 1994. In the letter, Gravius suspended Dyno's blasting permit for FR's quarry, effective at noon on October 21, 1994, because it violated Brookfield Zoning Regulations § 242-302. (ROR, Item 26.) Based on the information provided to the court in the return of record and supplemental return of record, Gravius did not provide Kanute or Dyno with an opportunity for showing compliance by conference or otherwise with the lawful requirements for the retention of the permit before he suspended Dyno's blasting permit on October 21, 1994.6 Further, neither the return of record nor the supplemental return of record indicates that Gravius provided Kanute or Dyno with such an opportunity after he suspended Dyno's blasting permit. Additionally, Gravius did not find that public health, safety, or welfare imperatively required emergency action, nor did he incorporate such a finding in his suspension letter to Dyno. Therefore, Gravius summarily suspended Dyno's blasting permit in violation of General Statutes §
IV. Whether this court lacks jurisdiction to consider this appeal because the court lacks the power to grant the plaintiffs' requested relief.
In the plaintiffs' second amended appeal, they request that the court: (1) reinstate the blasting permit; (2) reverse Gravius' decision to suspend the blasting permit; and (3) order the payment of plaintiffs' attorney's fees and costs.
In response to the requested relief, the defendants argue that "[i]t is a general rule that the court lacks jurisdiction to consider an appeal where no practical relief can flow to the appellant from the decision of the court." (Defendants' Brief, p. 9.) Specifically, the defendants argue that because the blasting permit expired on October 27, 1994, the court cannot reinstate the blasting permit. Additionally, the defendants argue that because an administrative appeal is a statutory remedy and neither General Statutes §
The defendants are correct when they argue that Dyno's blasting permit expired on October 27, 1994, and therefore this CT Page 3817 appeal is moot. "Mootness implicates the court's subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Citations omitted; internal quotation marks omitted.) Ayala v. Smith,
However, this court may rely "on the well established exception to the mootness doctrine for issues that are capable of repetition, yet evading review" to resolve the defendants' mootness argument. (Internal quotation marks omitted.) Ayala v.Smith, supra, 95. "Our [Supreme Court's] cases reveal that for an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will rise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." Id.
In the present case, all three requirements of the "capable of repetition, yet evading review" exception have been met. First, Gravius suspended Dyno's month long blasting permit six days before it expired on October 27, 1994. Therefore, when the plaintiffs appealed Gravius' suspension of Dyno's permit, alleging that they were harmed by the suspension of Dyno's blasting permit for their quarry, the suspension of the month long blasting permit is "by its very nature . . . of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded." Second, because FR operates a quarry which requires blasting to harvest rocks for sale, and Gravius is the fire marshal who issues blasting permits for up to a year in duration, there is "a reasonable likelihood that the question presented in CT Page 3818 the pending case will rise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate." Third, because the activities occurring at FR's quarry have led to numerous town meetings in Brookfield, and also have given rise to a multitude of contested and litigated cases in the Connecticut court system, the activities and especially the blasting at FR's quarry has "some public importance." Accordingly, this court possesses subject matter jurisdiction over this appeal.
Meanwhile, General Statutes §
V. Whether Gravius correctly suspended Dyno's blasting permit.
In addition, Gravius violated the requirements of General Statutes §
Conclusion
The defendants' argument that the plaintiffs failed to exhaust their administrative remedies is without merit. Neither Kanute nor Dyno are indispensable parties to this appeal, and the plaintiffs, FRM and RA, had the authority to bring this appeal pursuant to General Statutes §
Further, based on the information provided to the court in the return of record and the supplemental return of record, Gravius did not provide Kanute or Dyno with an opportunity for showing compliance with the lawful requirements for the retention of the blasting permit by conference or otherwise before or after he suspended Dyno's blasting permit on October 21, 1994. Therefore, Gravius' actions violated General Statutes §
Additionally, because in the present case all three requirements of the "capable of repetition, yet evading review" exception to the mootness doctrine have been met, this court possesses subject matter jurisdiction over this appeal. Also, because this court has not reached the issue of whether Gravius' suspension of Dyno's permit was "undertaken without substantial justification," the plaintiffs are not entitled to reasonable fees and expenses.
Regarding the merits of this appeal, Gravius incorrectly suspended Dyno's blasting permit, based on FR's violation of Brookfield Zoning Regulations § 242-302, because FR's violation was not, pursuant to General Statutes §
Leheny, J. [EDITORS' NOTE: THE CASE THAT PREVIOUSLY APPEARED ON THIS PAGE HAS BEEN MOVED TO CONN. SUP. PUBLISHED OPINIONS.] CT Page 3844