Opinion
No. CV 08-4024530S
June 25, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendant has filed a Motion to Dismiss (#102) claiming (1) that the plaintiff — Gladstone lacks standing as taxpayer to bring this action and (2) that the plaintiff — Belltown is seeking an adjudication of what is actually a political, nonjusticiable controversy.
The plaintiff has filed an Objection to the Motion to Dismiss.
The plaintiff — Gladstone is a resident of the Belltown section of the City of Stamford and is a Stamford taxpayer and a taxpayer to the fire district of Belltown. He is also a member of the Belltown Fire Department and serves as its president.
The plaintiff — Belltown Fire Department, Inc (hereinafter referred to as "Belltown") is a volunteer fire company located in the Belltown section of the City of Stamford. It is a private, not for profit corporation.
The plaintiffs filed a verified complaint dated April 10, 2008 seeking (1) a declaratory judgment to declare that the defendant must continue to raise and pay over to Belltown monies sufficient to sustain the company, (2) a writ of mandamus to order the defendant to raise and pay over to Belltown tax money sufficient to sustain the company, (3) an injunction to require the defendant to raise and pay over to Belltown sufficient monies to sustain the company and (4) a declaratory judgment to declare that the defendant cannot divert the plaintiff Gladstone's fire tax payment from fire protection in the Town area to fire protection in the city area.
MOTION TO DISMISS:
"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314 (1995). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . ." (Internal quotation marks omitted.) In re Shawn S., 262 Conn. 155, 164, 810 A.2d 799 (2002). "Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy . . ." (Internal quotation marks omitted.) Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn.App. 711, 714, 822 A.2d 257 (2003). The "plaintiff has the burden of proving standing." Sadloski v. Manchester, supra, 235 Conn. 649.
ARGUMENT
The defendant claims that the plaintiff — Gladstone lacks standing. They assume as true that he is a resident of the Belltown section of the City of Stamford and that he is a taxpayer and that he is a member of and officer of plaintiff — Belltown and also that monies he pays in taxes is suppose to be passed along to plaintiff Belltown and that monies he pays in taxes are being diverted to the City.
The defendant claims that none of the above claims are sufficient to establish standing for the plaintiff — Gladstone with respect to the injunctive and mandatory relief being sought. The defendant claims that the plaintiff — Gladstone can not claim taxpayer standing since the relief being sought would tend to increase his taxes. The defendant claims that as to the plaintiff — Belltown its issues are political and non-justiciable rendering the court without jurisdiction.
The plaintiff — Gladstone alleges in the verified complaint that he is a resident of Belltown; he is a Stamford taxpayer; he is a member of the Belltown Fire Department and currently serves as its president. He further alleges that he is paying taxes for fire protection in the town areas only, but now under the new budget for 2008-2009, his taxes are being diverted to pay for fire protection in the city area, where fire protection is more expensive. He alleges his taxes, which are supposed to go only to fire protection in the town area, will not be reduced after July 1, 2008, though the amount of money spent for fire protection in the town area will be greatly reduced — necessarily meaning that his tax money being diverted to the city tax area will increase. The plaintiff — Gladstone claims that if the defendant achieves its goal of eliminating the plaintiff — Belltown, the injury to plaintiff — Gladstone qua taxpayer will become even greater.
The plaintiff — Belltown and Plaintiff — Gladstone claim that the City of Stamford has violated its charter, namely Section C5-40-3-d and C8-40-4(a). They claim that the City has effectively eliminated the plaintiff — Belltown volunteer fire department by the level of funding for it in the 2008-09 budget. In the last year's budget the defendant funded the plaintiff — Belltown at the rate of approximately $13,000 per month and in the 2008-09 budget the funding is $20,000 for the year
TAXPAYER STANDING:
"The plaintiff's status as a taxpayer does not automatically give [it] standing to challenge alleged improprieties in the conduct of the defendant town . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d it] to suffer some pecuniary or other great injury . . . It is not enough for the plaintiff to show that [its] tax dollars have contributed to the challenged project . . . [T]he plaintiff must prove that the project has directly or indirectly increased [its] taxes . . . or, in some other fashion, caused [it] irreparable injury in [its] capacity as a taxpayer." (Internal quotation marks omitted.) Id. In that case, wherein the plaintiff had challenged a tax abatement, we held that, "[b]ecause standing is a practical concept, common sense suggests that a taxpayer who challenges a part of a particular governmental program must demonstrate [its] injury in the entire fiscal context of that program, taking into account both the burdens and benefits of the program, and not just by demonstrating that the presumably burdensome part of the program itself, divorced from the larger program of which it is a part, causes injury." (Internal quotation marks omitted) Id. West Farms Mall, LLC v. Town of West Hartford, supra, 279 Conn. 13-14.
"The two-pronged standard of proof — taxpayer status and conduct that has caused or will cause increased taxes or other irreparable injury — is one that this court consistently has articulated since at least 1943. See, e.g., Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943); Bassett v. Desmond, supra, 140 Conn. 430; Austin v. Housing Authority, 143 Conn. 338, 349, 122 A.2d 399 (1956); Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Belford v. New Haven, 170 Conn. 46, 53, 364 A.2d 194 (1975), overruled in part by Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57 n. 7, 441 A.2d 68 (1981); Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 549; Highgate Condominium Ass'n. v. Watertown Fire District, 210 Conn. 6, 15, 553 A.2d 1126 (1989); Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695, 600 A.2d 1019 (1991); Sadloski v. Manchester, supra, 228 Conn. 83. Indeed, it is evident from these cases that a more stringent standard is imposed to assert successfully taxpayer standing than is required to invoke standing on the basis of classical aggrievement." Id., 14.
The court in Alarm Applications v. Simsbury Volunteer Fire, 179 Conn. 541 (1980) 427 A.2d 822 addressed this issue and when read along with West Farms Mall, LLC v. Town of West Hartford, guides this court on this issue. "We have long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action. See Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975); Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953); Sauter v. Mahan, 95 Conn. 311, 314, 111 A. 186 (1920); Mooney v. Clark, 69 Conn. 241, 244, 37 A. 506 (1897); New London v. Brainard, 22 Conn. 553, 557 (1853). Such actions may also be brought where the alleged improper action is that of a quasi-municipal corporation. See Larkin v. Bontatibus, supra. Absent the existence of another special legal relationship, not here alleged, however, this court has not recognized the capacity of an individual or a private corporation that has not alleged taxpayers' status to maintain an action challenging the propriety of the conduct of a municipal corporation. We have said that a party's status as a taxpayer, without a demonstration by him of some tangible injury, does not by itself confer standing upon him where the defendant is a municipal corporation. Bell v. Planning Zoning Commission, 174 Conn. 493, 497-98, 391 A.2d 154 (1978); Belford v. New Haven, 170 Conn. 46, 51-53, 364 A.2d 194 (1975); Gannon v. Sanders, 157 Conn. 1, 6-9, 244 A.2d 397 (1968); Truesdale v. Greenwich, 116 Conn. 426, 430-32, 165 A. 201 (1933). Thus, our cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer "some pecuniary or other great injury." Bassett v. Desmond, supra, 430; see Belford v. New Haven, supra, 53; Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Gannon v. Sanders, supra; see 18 McQuillin, Municipal Corporations (3d Ed.) 52.12, 52.24. The first condition ensures that there be some legal relationship or nexus between the plaintiff and the municipal entity that establishes the municipality's duty to expend or allocate tax monies in a manner consistent with law. See 74 Am.Jur.2d, Taxpayers' Actions 1; 64 C.J.S., Municipal Corporations 2122. The second condition ensures that our courts will be called upon to decide matters in which the litigants have a specific, legal interest, as distinguished from a mere general interest, in the subject matter of the controversy. See Belford v. New Haven, supra, 52-53; Gannon v. Sanders, supra, 6; Waterbury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837 (1944); see also 74 Am.Jur.2d, op. cit. 4." Alarm Applications v. Simsbury Volunteer Fire, supra, 179 Conn. 548-49. "The alleged injury to the taxpayer has generally been demonstrated by evidence that the municipality has either directly increased taxes or appropriated moneys from local funds." Rustici v. Malloy, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket Number (X02) CV97-0164460S (July 1, 2004, Schuman, J.) 2004 Ct.Sup. 10268.
TAXPAYER STANDING AS TO PLAINTIFF — GLADSTONE:
As to the plaintiff — Gladstone, he will continue to pay taxes to the town area for fire protection, which includes the district of Belltown and those tax dollars shall be diverted to the City area fire protection, he will be paying for a more expensive fire department as opposed to the volunteer fire department his tax dollars had been supporting, therefore he has sustained his burden of proof that he more likely than not shall suffer a pecuniary or other great injury. For all of the above reasons (See Also Rustici v. Malloy, Superior Court, judicial district of Danbury, Docket No CV97-0329760S (May 29, 1998, Leheny, J.) 1998 Ct.Sup 6609; and Rustici v. Malloy, Superior Court, judicial district of Waterbury (Complex Litigation), Docket No (x02)CV97-0164460S (July 1, 2004, Schuman, J.) 2004 Ct.Sup. 10268) the court finds that the plaintiff Gladstone has standing to bring this action.
POLITICAL AND NONJUSTICIABLE ISSUES — PLAINTIFF — BELLTOWN
"The principles that underlie justiciability are well established. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982); Pellegrino v. O'Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984). The third requirement for justiciability, [commonly referred to as] the political question doctrine, is based on the principle of separation of powers. Nielsen v. Kezer, 232 Conn. 65, 75, 652 A.2d 1013 (1995); Pellegrino v. O'Neill, supra, 680. The characterization of [an issue] as political is a convenient shorthand for declaring that some other branch of government has constitutional authority over the subject matter superior to that of the courts. Pellegrino v. O'Neill, supra, 680. The fundamental characteristic of a political question, therefore, is that its adjudication would place the court in conflict with a coequal branch of government in violation of the primary authority of that coordinate branch. Baker v. Carr, [ 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)]. Nielsen v. Kezer, supra, 74.
"Whether a controversy so directly implicates the primary authority of the legislative or executive branch, such that a court is not the proper forum for its resolution, is a determination that must be made on a case-by-case inquiry." Id., 74-75. "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. Baker v. Carr, supra, 369 U.S. 217; see Fonfara v. Reapportionment Commission, 222 Conn. 166, 184-85, 610 A.2d 153 (1992)." (Internal quotation marks omitted.) Nielsen v. State, supra, 236 Conn. 6-8. Furthermore, simply because the case has a "connection to the political sphere [is not] an independent basis for characterizing an issue as a `political question' . . ." Board of Education v. Naugatuck, 257 Conn. 409, 425, 778 A.2d 862 (2001)." Seymour v. Region One Board of Education, 261 Conn. 475, CT Page 10602 482-83, 803 A.2d 318 (2002).
As Nielsen v. State, supra, 236 Conn. 7, teaches, there are essentially six circumstances in which a given issue may be characterized as a nonjusticiable political question, namely, where: (1) the text of the constitution demonstrates that the issue is committed to another branch of government; (2) there are no judicially discoverable and manageable standards for resolving the issue; (3) in order to decide the case, the court would be required to make an initial policy determination of the kind that clearly involves nonjudicial discretion; (4) the court would be required to express a lack of due respect to a coordinate branch of government; (5) there is an unusual need for unquestioning adherence to a preexisting political decision; or (6) there is a potential of embarrassment from multifarious pronouncements by various other governmental departments on one question. In order for any of these circumstances to apply, however, it must be "inextricable from the case at bar . . ." (Internal quotation marks omitted.) Id., 8. If that inextricability is lacking, "there should be no dismissal for nonjusticiability on the ground of a political question's presence." (Internal quotation marks omitted.) Id.
"For purposes of the political question doctrine, a town or city council qualifies as a legislative branch to which the courts owe deference. See Blackwell v. City of Philadelphia, 546 Pa. 358, 684 A.2d 1068, 1072 (1996)." Rustici v. Malloy, (Schuman) supra p. 10278.
STANDING AS TO PLAINTIFF — BELLTOWN
The issue before the court is not an interference with the budgetary process. It is not for the court to decide how much monies should be appropriated to the plaintiff — Belltown. The question is whether the claims of the plaintiffs that the city violated two provisions of its charter are political and nonjusticiable as asserted by the defendant or non-political and justiciable as asserted by the plaintiffs and thereby giving them standing.
The two charter provisions are: Section C5-40-3-d and C8-40-4(a) Section C5-40-3-d of the charter of the city of Stamford provides as follows:
Jurisdiction. The services of the Fire and Rescue Department under the control of the Chief shall be limited to the City Fire Service District, except in the case of an emergency. Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford. The Fire Service Districts are indicated on the map of Fire Service Districts, prepared by the City Engineer, dated January 21, 1997 and on file in the Office of the Town and City Clerk of the City and shall delineate the fire service boundaries of the respective regular and Volunteer Fire Departments.
Changes in Fire Service Districts may be made by ordinance adopted by a two-thirds vote of the total membership of the Board of Representatives with the advice of the City Fire and Rescue Chief and the respective Chief of the Volunteer Fire Department affected.
Section C8-40-4(a) of the charter of the city of Stamford is located in Part 8, Division 4 of the charter, which are entitled, respectively, "Budgetary procedures" and "Taxation." The section itself is entitled "Tax for Fire Service." It provides as follows:
(a) The property within the City Tax District shall be subject to taxation in an amount necessary to raise the net appropriation for all costs incurred for the operation of the Regular Fire Department, including principal and interest payments for bonds issued for capital improvements for the Regular Fire Department; provided it shall not be liable for any part of the contribution made to the Volunteer Fire Departments.
(b) Except for property within the City Tax District which is served by the Regular Fire Department, all other property within the Town Tax District which is served, or to which services are available by the Volunteer Fire Departments, shall be subject to taxation in an amount necessary to raise the net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments, including fire hydrants, water supplies, and principal and interest payments for bonds issued for capital improvements for the Volunteer Fire Departments.
Disputes as to these two charter sections are not strangers to the court system. There are two decisions involving these two charter provisions which this court relies upon in the formulation of its decision on the instant Motion to Dismiss.
The first is Rustici v. Malloy, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 97-0329760 (May 29, 1998, Leheny, J.) 1998 Ct.Sup. 6609 (hereinafter referred to as Rustici v. Malloy (Leheny). This was a decision on a Request for a temporary injunction. The second is Rustici v. Malloy, Superior Court, judicial district of Waterbury (Complex Litigation), Docket No (x02)CV97-0164460S (July 1, 2004, Schuman, J.) 2004 Ct.Sup. 10268 (hereinafter referred to as Rustici v. Malloy (Schuman). This was a decision on a motion for summary judgment.
In Rustici v. Malloy (Schuman) the court did an analysis of the question of whether or not the violation of these two charter provisions was a political question. "In the specific context of volunteer fire companies, our legislature has recognized the discretionary nature of the city's funding obligation. General Statutes § 7-301 provides for towns to establish a "town fire department" subject to regulation by the town's government. The section concludes with the following proviso: "Nothing in this section shall prevent any town, city or borough or incorporated fire district from appropriating funds to a volunteer fire company or companies for services rendered or to be rendered within the confines of such town, city, borough or district by such fire company or companies, provided such town, city, borough or incorporated fire district shall deem it in the public interest to do so." Thus, the legislature has made the funding of volunteer fire companies depend on the political question of whether the town government deems finding to be in the "public interest." See also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 182, 544 A.2d 1185 (1988) ("the provision of police services to a city's general population is a quintessential discretionary governmental act")." Rustici v. Malloy (Schuman) supra, p. 10279-80.
"There are, however, some limits to the political question doctrine in the context of public spending. Our Supreme Court has stated: "Although, of course, the manner in which any governmental function, educational or otherwise, is financed is generally a matter falling within the fiscal power of the legislative branch, that does not mean that the constitution textually commits to that branch any constitutional challenge to a particular system of financing." Seymour v. Region One Board of Education, supra, 261 Conn. 485. Thus, the question of whether a particular fiscal formula set forth in a statute violates the constitution is not a political one. Id." Rustici v. Malloy (Schuman) supra, p. 10280.
"From this proposition, however, it is somewhat of a leap to say that courts should adjudicate the question of whether a town's funding of a particular program violates a town charter. Although it was established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that courts have a duty to determine whether a statute violates the constitution, see Seymour v. Region One Board of Education, supra, 261 Conn. 486, there is no similar history addressing the matter of whether courts must resolve a dispute concerning a municipal charter.
Similarly, there are "easily discoverable and manageable judicial standards . . . for determining whether a statute meets the requirements of due process . . . or equal protection of the laws . . ." id., 485, but the question of whether the level of a city's funding satisfies a charter provision, which involves essentially a governmental decision, is not as readily manageable. Cf. Board of Education v. Naugatuck, 257 Conn. 409, 425, 778 A.2d 862 (2001) (validity of town charter provisions involves question of statutory interpretation and therefore capable of judicial resolution). Further, a dispute between citizens and their municipal government concerning the adequacy of appropriations is fully capable of being resolved by the legislative, executive, or electoral processes of that government, to which the court owes due respect. See Seymour v. Region One Board of Education, supra, 261 Conn. 484." Rustici v. Malloy (Schuman) supra, p. 10280.
Thus, the court concludes that at most a very deferential form of review is appropriate. See Barannikova v. Greenwich, 229 Conn. 664, 677-78, 643 A.2d 251 (1994) (deferential review of constitutionality of state's allocation of political power or governmental positions). Clearly, although every change in appropriations for the volunteer fire departments will have some effect on their "organization, property and status," the court cannot realistically become involved on every such occasion. The charter itself seems to permit some level of financial indebtedness or insolvency in the volunteer fire departments. Even the plaintiffs' request for the city to treat the company in a manner similar to that of the other volunteer departments requires the court to become entangled in a quintessentially political process and would show "a lack of due respect to a coordinate branch of government . . ." Seymour v. Region One Board of Education, supra, 261 Conn. 484. Such an intrusive approach might also compromise the mandate of General Statutes § 7-301 that the funding of volunteer fire departments depends on what the town deems within its public interest. On the other hand, if the prohibition in § C5-40-4(d) on charter-authorized budgetary actions that affect the "organization, status, and property" has any meaning that the courts can enforce, the prohibition surely prevents the city, through budgetary means otherwise authorized by the charter, from eliminating the volunteer fire departments. Thus, the political question doctrine should not bar the plaintiffs' opportunity to prove their allegations that, contrary to this prohibition, the city has "followed through on their threats to manipulate the company's finances in an effort to drive it and the plaintiffs into submission, or the company out of existence."
In Rustici v. Malloy (Schuman) the court found that it was necessary and appropriate for the party to be able to present evidence that "on matters such as the expenses (and thus the net financial viability) of the company, whether the company is currently able to function based on its current level of financing, or whether there are any plans to decrease expenditures to the point at which the company cannot survive. This affidavit creates a factual dispute about the survival of the company. Therefore, it is necessary to conduct a trial on the issue of whether the city, through inadequate funding, has eliminated the company, attempted to eliminate the company, or intends to do so." Rustici v. Malloy (Schuman) supra p. 10281.
Therefore, Rustici v. Malloy (Schuman) found, as did Rustici v. Malloy (Leheny) that in ascertaining the meaning of C-5-40-3(d) "The court rejects the more tortured interpretation of this section of the charter posited by the defendants and finds that the plain language of this section is clear as to the issue before the court. That language, crucial to the plaintiffs' argument, is the language which states that "Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." The court finds that "nothing" indeed means "no thing." Id., p. 6616.
In reaching that conclusion in Rustici v. Malloy (Leheny) the court relied on Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 423-24, 572 A.2d 951 (1990), the court stated as follows: "It has been well established that a city's charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . Agents of a city, including [the board of representatives], have no source of authority beyond the charter . . . In construing a city charter, the rules of statutory construction generally apply . . . A city charter must be construed, if possible, so as reasonably to promote its ultimate purpose . . . In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the tems. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view. The language employed must be given its plain and obvious meaning, and, if the language is not ambiguous a court cannot arbitrarily add to or subtract from the words employed. A charter provision, like a statute must be definite and certain. An individual must be able to determine whether his or her proposed activity is prohibited." (Citations omitted; internal quotation marks omitted.) Rustici v. Malloy (Leheny) supra p. 6614-15.
At the hearing on the Motion to Dismiss, testimony was given by the plaintiff — Gladstone, the chief of the plaintiff — Belltown Fire Department, the director of Public Safety for the City of Stamford. Testimony was given as to the expenditures needed to maintain the plaintiff — Belltown. There was also testimony as to the assets on hand. The largest account is a "reserve" for the purchasing of fire equipment. The account, containing approximately $100,000.00 was collected as the result of fund raisers wherein the solicitation stated that these monies would only be used for the given purchase of purchasing equipment. The balance of the funds on hand (for scholarships, block parties, hall rentals and antique truck restoration) are far outweighed by the expenses listed on the financial statement presented into evidence as plaintiff's exhibit 1. Those expenses for eleven months (7/1/2007 — 6/9/2008) exceed $124,000.00. The court found credible the testimony offered by the plaintiffs that indeed the city may be funding them into nonexistence with an appropriation of $20,000.00 for then entire year. These are issues to be raised however, on the merits of the case. However, they were a necessary finding for this court to make on whether or not the issues in this case are purely political, nonjusticiable questions.
Therefore, this court denies the Motion to Dismiss, finds that the issues raised by the plaintiffs are not political and not nonjusticiable. The issue is whether the City has violated the charter by underfunding the plaintiff — Belltown to the point that it can no longer survive. There should be evidence presented on this issue so that the court can make the determination of whether or not the city, through inadequate funding has in effect eliminated or attempted to eliminate the volunteer fire company in violation of the charter provision which requires that "Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford."