DocketNumber: No. 52 50 58
Citation Numbers: 1994 Conn. Super. Ct. 7508
Judges: HURLEY, J.
Filed Date: 7/19/1994
Status: Non-Precedential
Modified Date: 7/5/2016
In his proposed final decision dated March 25, 1992, the hearing officer found that the evidence in the record did not support the conclusion that the odors constituted unreasonable pollution. The hearing officer further found that no reasonable or prudent alternative existed to the plaintiff's waste water treatment plant. The hearing officer did not reopen the hearing or provide the plaintiff with an opportunity to present evidence regarding the CEPA issues. On April 9, 1992, the plaintiff requested oral argument on the proposed final decision and at oral argument requested that the hearing be reopened to allow the plaintiff to submit evidence regarding the Walsh petition. The Commission denied the request on September 9, 1992, and on the same day issued his final decision on the plaintiff's application.
In his final decision, the Commission overruled the hearing officer's finding that the odors did not constitute CT Page 7510 unreasonable pollution under CEPA, and found that the citizen testimony at the public hearing supported a finding of unreasonable pollution. The Commission issued a permit containing a condition that addressed the odor findings. He later agreed to substitute an administrative consent order for that condition. The administrative order required the plaintiff to perform certain investigatory studies, purchase and install equipment and machinery to address the odors, and to regularly monitor odors, which the plaintiff continues to do in accordance with the order. There is currently pending in Superior Court an injunction action by the citizens against the plaintiff under §
On January 21, 1993, the Commissioner filed a motion to dismiss the plaintiff's appeal, accompanied by a memorandum of law, on the ground that the court lacks subject matter jurisdiction in that there is no actual controversy for which judicial relief can be granted. On May 4, 1994, the plaintiff filed a memorandum in opposition to the Commissioner's motion. On September 21, 1993, the Commissioner filed a "Second Motion to Dismiss" the plaintiff's appeal, accompanied by a memorandum of law, on the ground that the court lacks subject matter jurisdiction in that the plaintiff is not aggrieved. On February 28, 1994, the plaintiff filed a memorandum of law in opposition to the Commissioner's second motion to dismiss. Apparently, neither of these motions to dismiss were argued or acted upon by the court.
On February 28, 1994, the plaintiff filed an amended appeal. On March 23, 1994, the Commissioner filed a motion to dismiss the plaintiff's amended appeal on the ground that the court lacks subject matter jurisdiction in that there is no actual controversy for which judicial relief can be granted and because the plaintiff is not aggrieved. The Commissioner filed a memorandum of law in support of his motion. In this memorandum, in addition to further argument on the issue of aggrievement, the Commissioner incorporates his arguments from his memoranda in support of his first two motions to dismiss in support of this motion to dismiss. On April 14, 1994, the plaintiff filed a memorandum in opposition to the Commissioner's third motion. Both parties have also filed supplemental memoranda. CT Page 7511
DISCUSSION
A motion to dismiss is the proper vehicle for challenging the court's subject matter jurisdiction. Practice Book § 143. "Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer,
"It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction." New EnglandRehabilitation Hospital of Hartford, Inc. v. CHHC,
The determination of whether a party is aggrieved
"encompasses a well-settled twofold CT Page 7512 determination: first, `the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.'"
(Citations omitted; internal quotation marks omitted.) LightRigging Co. v. Department of Public Utility Control,
In its amended complaint, the plaintiff alleges that "[t]he WPCA has a specific, personal and legal interest in the subject matter of the decision that is not general or common to all members of the community as a whole. This specific, personal and legal interest has been specially and injuriously affected [by] the decision." (Amended Appeal, para. 17). The plaintiff further alleges that "[t]he Town has exhausted all administrative remedies and is aggrieved by the Commissioner's final decision." (Amended Appeal, para. 19). In its prayer for relief, the plaintiff requests the court to, inter alia, "[r]eview the Commissioner's final decision and render judgment modifying the Commissioner's decision by reversing the finding of unreasonable pollution or, in the alternative, reverse the Commissioner's decision and remand this matter to the Commissioner for further proceedings in light of the Court's decision." (Amended Appeal, p. 7, Prayer for Relief.)
The Commissioner claims that there is no actual controversy before the court because there is no further relief that the court could grant in this appeal, in that the Commissioner approved the issuance of the plaintiff's permit application to discharge treated sewage effluent into the Pawcatuck River. The Commissioner claims that whether he erred CT Page 7513 in finding unreasonable pollution is an academic question, because he approved the issuance of the requested permit.
The Commissioner concedes that the plaintiff has a specific personal and legal interest in the subject matter of this appeal. However, the Commissioner claims that the plaintiff cannot meet the second prong of the two-part test for aggrievement, that the plaintiff's interest has been specially and injuriously affected by the decision, because the Commissioner granted the plaintiff's permit application. The Commissioner maintains that the plaintiff is appealing because it is concerned that the Commissioner's finding that the odors constituted unreasonable pollution will be used against the plaintiff in the pending injunction action by the citizens referred to in the plaintiff's amended appeal. The Commissioner asserts that this concern is too speculative and insubstantial to meet the second prong of the two-part test for aggrievement.
In opposition, the plaintiff argues it has adequately alleged aggrievement in paragraphs 17 and 19 of its amended appeal; therefore, the plaintiff has a right to present evidence supporting its allegations at a hearing so the court may make a factual determination regarding aggrievement. The plaintiff further argues that the Commissioner is impermissibly seeking a review of the merits of the plaintiff's appeal on a motion to dismiss
In its memoranda, the plaintiff further articulates its claim of aggrievement. The plaintiff asserts that the Commissioner determined that the plaintiff's water treatment plant violated the standards set out in CEPA, and the plaintiff is now reckoning with this finding in the context of the injunction action brought by the local citizens. The plaintiff maintains that the Commissioner's finding of unreasonable pollution also gave rise to a permit condition and a subsequent administrative consent order that has clearly affected and continues to affect the plaintiff. The plaintiff also asserts that it is an agency of a municipality and the decision affects the way in which the local government is viewed by its citizens. The plaintiff, citing Mystic Marinelife Aquarium,Inc. v. Gill,
The parties have not cited any authority directly on point, and research reveals no Connecticut authority regarding aggrievement in an appeal in which a successful applicant is challenging a finding of fact made by the agency.
The court finds that the factual allegations in paragraphs 17 and 19 of the plaintiff's amended appeal are insufficient, standing alone, to support a finding of aggrievement. Contrary to the plaintiff's claim, the allegations in paragraphs 17 and 19 of the amended appeal are not factual allegations showing aggrievement, but are simply legal conclusions, unsupported by facts.
The court looks, however, to the other factual allegations in the amended appeal to see if those allegations, if proven, would support a finding of aggrievement. These factual allegations show that the Commissioner made a finding of unreasonable pollution, but found that no feasible or prudent alternative existed. In its appeal the plaintiff is contesting a factual finding of the Commissioner that did not prevent the Commissioner from granting the plaintiff's application. The plaintiff has not alleged any facts that show that the Commissioner's finding adversely affected the plaintiff. In its memoranda, the plaintiff asserts that this finding may adversely affect the plaintiff in the future with respect to the pending injunction action.
While the plaintiff alleges that the Commissioner imposed a condition in the permit regarding abatement of the odors, the plaintiff alleges in the same paragraph that it entered into an administrative consent order with respect to that condition and the Commissioner substituted the order for the condition. In this appeal, the plaintiff is not appealing the Commissioner's imposition of the condition and is not seeking any relief from that condition. Thus, the plaintiff's statement in its memoranda that the imposition of the condition adversely affects it would not support a finding of aggrievement.
The plaintiff's allegation that it is defending an injunction action brought by the citizens under CEPA alleging that the plaintiff's waste water treatment plant is a source of CT Page 7515 unreasonable pollution, is insufficient, standing alone, to support a finding of aggrievement. While a plaintiff need only show a possibility that its interest in the decision has been injuriously affected; see Light Rigging Co. v. Department ofPublic Utility Control, supra,
Mystic Marinelife Aquarium, Inc. v. Gill, supra,
CONCLUSION
For all the foregoing reasons, the plaintiff's appeal is hereby dismissed for lack of subject matter jurisdiction.
Hurley, J.