DocketNumber: No. 30 17 31
Judges: GORMLEY, JUDGE
Filed Date: 8/21/1990
Status: Non-Precedential
Modified Date: 4/17/2021
On or about May 4, 1987, the Commissioner of the State CT Page 888 Department of Environmental Protection ("DEP") instituted a civil action against plaintiff Patricia McManus in the Judicial District of Hartford concerning the maintenance of a farm pond on her property. This civil action was brought pursuant to the Commissioner's power under Conn. General Statutes
The plaintiffs have been forced to expend great amounts of money and time in the defense of the civil action instituted by the DEP. During the prosecution of the civil action by the DEP, 56 pleadings were filed, four depositions were taken, and several motions were briefed and argued. In addition to the substantial time spent by the plaintiff, Attorney Vincent T. McManus, and by lawyers in his office, the plaintiffs paid in excess of $13,000 in legal fees to defend the DEP's lawsuit.
It is the Order of March 1990 which is the subject matter of this action. The plaintiff has filed a civil action seeking a temporary and permanent injunction prohibiting the defendant from enforcing its order and for declaratory judgment relief interpreting the term "farm pond". The plaintiffs have sought, and there is scheduled in September of 1990, a hearing before the Department of Environmental Protection concerning that order. The court, Mulvey, State Trial Referee, on July 23, 1990 denied the request for temporary injunction because the plaintiffs had asked for said hearing. The defendant has moved to dismiss the complaint because the Superior Court lacks jurisdiction to hear this matter because the plaintiff has failed to exhaust his available administrative remedy.
LAW
The case of Laurel Bank Inc. v. PAC,
"We have frequently stated that when a party has a statutory right to 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."
In this case, the Commissioner has scheduled a hearing on its order of March 6, 1990, at the plaintiffs' request, and the defendant has conceded in its brief that the administrative proceedings constitute a "contested case" within the meaning of the U.A.P.A. from which an appeal may be had to the Superior Court.
Most recently the Connecticut Supreme Court in the case of Cannata v. Department of Environmental Protection,
From the exhaustion doctrine, there are certain limited exceptions that may be considered: 1) when the constitutional propriety of an agency ruling is raised, Connecticut Light Power Co. v. Norwalk,
In reviewing the complaint in this case, the court will deal first with the Second Count asking for declaratory relief concerning the legality, authority and jurisdiction of the Commissioner to issue the order in dispute. Those issues can clearly be considered and raised in the administrative hearing scheduled in September and thereafter raised in an appeal from CT Page 890 that decision if the plaintiffs are dissatisfied with the result of the hearing. The Second Count is therefore dismissed. Additionally, the plaintiff has always had the opportunity to seek a declaratory ruling from the Commissioner under Conn. General Statutes
The First Count of the complaint is more difficult. The situation in this case is different from that in Cannata. There, the plaintiffs noticed their intention to take certain action they thought was authorized by the regulations without a permit, and the Commissioner maintained that a permit was necessary. Here the plaintiffs have already built their pond and the Commissioner is essentially ordering that they remove any of the deposits of soil they placed onto the wetland that was removed from the pond area.
Confronted with that situation, the Commissioner basically had two options in 1987: 1) to proceed under Conn. General Statutes
With reference to the due process or constitutional claim, we are not dealing here with a failure to provide a hearing or some other procedural right that was denied the plaintiffs. Apparently their claim relates to the fact that they have expended large sums of money for counsel fees in a case that has now been withdrawn. Unfortunately if that case had not been withdrawn the plaintiffs would have continued to expend money for counsel fees in that case. Their due process claim is vague and general and they have not demonstrated that they will suffer any substantial loss if they are required to exhaust the administrative remedy. It might even happen that the case will be resolved quicker and with less expense within the administrative setting.
With reference to the futility or inadequacy of the administrative remedy argument, the remedy is only futile or inadequate if the agency is without the authority to grant the requested relief. Greenwich v. Liquor Control Commission,
The plaintiffs then argue that because the Commissioner proceeded under
Therefore with great reluctance, the court will also grant the Motion to Dismiss the First Count, reluctance because the path and history of this case is troubling. As the plaintiffs claim, the subject matter of this case has now been in litigation for three years. The Commissioner initiated an injunctive action against the plaintiffs in the Superior Court in 1987, which has been heavily litigated, and which has generated 56 pleadings, several contested motions and 4 depositions. Without warning, the Commissioner withdrew that action on March 6, 1990 and began an administrative proceeding by issuing an order that was clearly available in 1987. The court at the hearing on this motion inquired of counsel for the Commissioner as to the possible motive for such an unusual step. The answer provided was at best disingenuous and at worst dishonest.
The reason given was that the Commissioner could not get the case determined in the Superior Court and that access to the administrative remedy would be quicker. To the extent that such a reason is accurate, it was as true in 1987 when the defendant made its choice of forums. The plaintiffs herein have expended large sums of money, time and effort in defending a case initiated by the state which has now been withdrawn, and the Commissioner and its attorney, the Office of the Attorney General, have similarly, in hard economic times, wasted the taxpayers' time, effort and money in pursuing a case for three years and then withdrawing it. The parties are now back to square one with nothing resolved. This court observed at the hearing on this motion that it could have resolved the underlying issues in this case in half the time that it has spent in resolving this motion. From such a state of affairs, there are no winners.
JOSEPH T. GORMLEY, Judge.
CT Page 892