DocketNumber: No. 51 59 92
Citation Numbers: 1995 Conn. Super. Ct. 1030
Judges: WAGNER, J.
Filed Date: 2/1/1995
Status: Non-Precedential
Modified Date: 4/18/2021
-I-
In its first special defense, the defendant claims that the plaintiff is guilty of laches and, therefore, the plaintiff's action and request for civil penalties ought to be barred. The defendant alleges that beginning on August 18, 1988, the defendant entered into a series of correspondence with the plaintiff concerning the modification of its existing waste treatment equipment by which it treated the waste water generated by its metal finishing business prior to its discharge to the Thomaston sewer system and the Naugatuck River; that thereafter the defendant has in good faith attempted to satisfy and fully cooperate with the plaintiff's requests for additional testing procedures and modifications to the plans originally submitted to the plaintiff in order to obtain approval for the requested modifications to its existing waste water treatment system; that defendant has expended in excess of $250,000.00 for engineering reports, testing, various proposals and related costs attempting to comply with the requests of the plaintiff and to enhance the quality of its treatment facility. The defendant further alleges that he has not received approval from the plaintiff to make the proposed modifications; that any CT Page 1031 violations by the defendant of the effluent limits contained in its permits arose from its inability to modify its waste water treatment system, which was directly related to the plaintiff's unreasonable delay in responding to the plaintiff's requests to make such modifications; that such laches and unreasonable delay were without good cause and substantially prejudiced the defendant in a number of listed ways.
Plaintiff claims that the defendant's first special defense should be stricken because the equitable doctrine of laches cannot prevent the State, acting in its sovereign capacity, from enforcing its laws and regulations. The defendant argues that this special defense is equitable in nature and is a proper special defense to interpose to the plaintiff's claim for civil penalties under the terms of Connecticut General Statutes §
Our Supreme Court in Dupuis v. Submarine Base CreditUnion, Inc.,
Where the State is acting in its governmental capacity to enforce environmental laws and regulations, the defense of laches is unavailable. Accordingly, plaintiff's motion to strike the defendant's first special defense of laches is granted.
-II-
In its second special defense, the defendant claims that the plaintiff was negligent in his duty to carry out his regulatory responsibilities consistent with the law he is charged to administer, and that defendant was denied its right to due process under the
To consider this claim a summary of the extensive allegations contained in the second special defense is necessary.
The defendant alleges that on September 3, 1985, the plaintiff, pursuant to General Statutes §
The defendant alleges further that on October 17, 1987, the defendant, independent of any other actions taken on the part of the plaintiff, determined that its treatment facilities, as approved by the plaintiff pursuant to NPDES permit No. CT0025305, might not in the future be adequate to protect the waters of the State from pollution, and brought the information to the attention of the Commissioner in the form of a proposal for modification of the defendant's waste treatment system and process areas; that in response to the defendant's proposals to the plaintiff for modification to the existing system, the plaintiff informed the defendant at a meeting on October 30, 1987 that what the defendant was proposing would require a formal permit modification prior to installation of the upgraded system and that bio-assay tests would have to be performed upon the defendant's existing discharges before additional treatment equipment, as proposed by the defendant, could be installed; that the defendant continued to process such application and on June 3, 1988, submitted a proposal to install new treatment systems; that by letter dated October 11, 1988, the plaintiff responded by noting that concept was acceptable and might meet all toxicity requirements that it did not think that "it makes sense to CT Page 1033 upgrade the treatment system now, and then have to upgrade it again in a year to insure that toxicity limits will be met."; moreover, for the first time, the plaintiff notified the defendant with respect to State Discharge Permit No. SP 0000100 that the defendant would have to apply for modifications to that permit as well.
The defendant claims that despite the representations made by the plaintiff in its letter dated October 11, 1988 concerning the defendant's proposed modifications, the plaintiff took no steps either to process a permit modification or otherwise authorize the defendant to process its proposed systems to treat the discharges in accordance with the defendant's proposed compliance schedule included with its July 27, 1988 submission other than to subject the defendant to additional limitations on its discharge.
Based upon the above and additional allegations of correspondence and the submission of reports and evaluations, defendant claims that plaintiff by his failure to act for five years when it acted to authorize the installation of corrective systems operated to deny the defendant its right to Due Process under the
II (A)
The plaintiff claims that the second special defense of violation of due process fails to allege a constitutionally protected property interest, vital to a due process claim, because it does not satisfy the "clear entitlement" test adopted by our Supreme Court in Red MapleProperties v. Zoning Commission,
The defendant argues that the inquiry under the clear entitlement test is whether there is a certainty or very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the plaintiff's staff. The defendant asserts that its claimed property interest "is not in the permit modifications requested as argued by the plaintiff, but in its right to CT Page 1034 comply with the terms of its existing permits which had already been granted by the plaintiff, permits to which Defendant had substantive rights and a clear entitlement unless and until they were revoked or suspended after notice and an opportunity to be heard pursuant to law."
Our Supreme Court has held that the due process requirements of the U.S. Constitution and Article
The `clear entitlement' test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials. A very strong likelihood means not simply a high probability of approval, but rather a virtual assurance of approval because any discretion is narrowly circumscribed. Application of the [`clear entitlement'] test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case.'
(Citations and internal quotation marks omitted.) Id., 322-23.
It is clear that under General Statutes § 22a, the defendant's proposed modifications were subject to the Commission's discretion and moreover that nothing in the Connecticut Water Pollution Regulations clearly entitles CT Page 1035 the defendant to the approval of its permit modifications. Defendant's proposed modifications were not "virtually assured" to be approved, since the Commissioner has broad discretion in determining whether to approve or deny them. The defendant's special defense boils down to the claim that the defendant was wrongfully denied a permit modification. We conclude that the defendant has failed to allege a "clear entitlement," the critical element to a due process claim and accordingly the plaintiff's motion to strike the defendant's second special defense is granted.
The plaintiff argues that the defendant's third special defense, which alleges a violation of the Equal Protection Clauses of Article I, Section 1 of the state constitution and the
The
III (A)
The third special defense also claims that Article I, Section I of the Connecticut Constitution is a defense to CT Page 1036 plaintiff's allegations of environmental pollution, alleging that the plaintiff's inaction on permit modifications deprived defendant of its right to pursue a lawful business and to be treated equitably as a member of the community.
Article I, Section I of the Constitution of the State of Connecticut provides, "[a]ll men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." The court in Golab v. New Britain,
Defendant has failed to allege facts which, if proven, would show that it was treated differently from other companies who are similarly situated or that there was intentional or purposeful discrimination on the part of the plaintiff, which would be necesary [necessary] to support a claim of denial of equal protection based on unequal application of
III (B)
The defendant also contends that it was denied equal protection of the laws because the plaintiff's actions deprived it of its right to operate a lawful business.
Where a claimant alleges a denial of its right to operate a lawful business based on an ordinance that is not regulatory, but is prohibitory, such an allegation of facts is sufficient to make an equal protection claim credible.Gionfriddo v. Windsor,
In this case the plaintiff is seeking to enforce CT Page 1037 regulatory environmental statutes designed for the protection of public health and, therefore, the special defense has failed to allege sufficient facts to support a valid defense under the equal protection clause based on denial of one's right to operate a lawful business.
III (C)
Finally, the defendant also claims in its third special defense that the plaintiff violated the defendant's rights as guaranteed by Article
Article
Defendant has not alleged any facts which would prove that the denial of its permit modifications destroyed the economic utilization of its land or that the plaintiff did not allow any reasonable alternative use of its property. We conclude that the defendant has failed to allege sufficient facts to support a cause of action under Article
Plaintiff's motion to strike this defendant's third special defense is granted.
The general rule is that estoppel may not be invoked when a government is functioning in its governmental capacity. Kimberly-Clark Corporation v. Dubno,
Viewed in the light most favorable to the pleader, we believe that the defendant has alleged sufficient facts of a somewhat extraordinary nature to support the application of estoppel against the plaintiff in the present case.
Those facts if proven would show that the resulting violation was induced by an agent having authority in such matters and that the plaintiff unjustifiably induced the defendant into failing to meet its permit specifications; that the specific actions the defendant has alleged were undertaken by an agent of the plaintiff, a Sanitary Engineer with the Water Compliance Unit of the Department of Environmental Protection; and that the actions the defendant has alleged were within the delegation of authority given by the Commissioner of Environmental Protection to the Water Compliance Unit and its employees that the plaintiff failed to comply with the procedures mandated by the general statutes and regulations in that it took no steps either to process a permit modification or otherwise to order the defendant to proceed with the completion of design and installation of its proposed systems to treat the discharges; and that the plaintiff's inaction was the cause of defendant's inability to meet the existing permit specifications.
The above allegations, if proven, would support the necessary element that these special circumstances would make it highly inequitable or oppressive to enforce at CT Page 1039 least the imposition of civil penalties sought in this case, or to mitigate them.
Exercising appropriate caution, we deny the Motion to Strike the Fourth Special Defense.
In summary, plaintiff's Motion to Strike First, Second and Third Special Defenses granted. Motion to Strike Fourth Special Defense denied.
Wagner, J.