Opinion
No. CV 10-6004563 S
August 1, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
This administrative appeal, brought by the plaintiff, the town of Bethel, pursuant to General Statutes § 8-8(b), challenges the September 1, 2010 decision of the defendant, the City of Danbury Planning Commission, to reject the plaintiff's second attempt to secure a special exception permit and site plan approval to construct a 750,000 gallon water storage tank on property the plaintiff owned in Danbury. The defendant has moved to dismiss the appeal on the ground that the court lacks subject matter jurisdiction. In particular, the defendant asserts that the plaintiff has improperly appealed from its decision to reject a proposed stipulated agreement and that such action is not an appealable "decision" under General Statutes § 8-8(b) and the Connecticut Supreme Court's interpretation of that term in Brookridge District Assn. v. Planning and Zoning Commission of the Town of Greenwich, 259 Conn. 607, 611-12, 793 A.2d 215 (2002). The plaintiff has opposed the motion to dismiss and counters that the defendant actually rejected a revised application for a special permit, not a settlement agreement, and that such action constituted an appealable "decision" under § 8-8(b).
It is well established that "`[t]here is no absolute right of appeal to the courts from a decision of an administrative agency.' Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); accord Town of Fairfield v. Connecticut Siting Council, 238 Conn.361, 368, 679 A.2d 354 (1996). `Appeals to the courts from administrative [agencies] exist only under statutory authority . . .' Tazza v. Planning Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); accord Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995); Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). `Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.'" (Internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, supra, at 479, 544 A.2d 633; see also Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 498, 659 A.2d 714 (1995) ("The right of appeal [from the decision of an administrative agency] is purely statutory. It is accorded only if the conditions fixed by . . . statute . . . are met." [Internal quotation marks omitted]).
A motion to dismiss "properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law or 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1991). Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
Factors that a trial court must consider in deciding a jurisdictional question raised in a pretrial motion to dismiss vary based upon the status of the record in the case. Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). "The court may decide the motion on the basis of the complaint alone, on the basis of the complaint supplemented by undisputed facts established by affidavits or other types of undisputed evidence filed in support of the motion, or, when the facts are disputed, on the basis of an evidentiary hearing to establish jurisdictional facts." CT Page 16524 Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550-51 n. 8 (2011); see also Conboy, supra, 292 Conn. 650-51. "Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." Id., 651.
"When issues of fact are necessary to the determination of a court's jurisdiction due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007); Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004). On the other hand, "the due process requirement of a hearing is required only when issues of facts are disputed." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007); see Amore v. Frankel, 228 Conn. 358, 369 636 A.2d 786 (1994).
The defendant's motion to dismiss is controlled by the Supreme Court's decision in Brookridge District Assn., supra, 259 Conn. 607. Brookridge involved an appeal by a third-party intervenor from a decision of the Greenwich Planning and Zoning Commission to approve a stipulated agreement to resolve a superior court appeal taken from the denial of a application for a special permit. The Supreme Court stated that in enacting § 8-8(b), the legislature "intended to authorize appeals only from those decisions that have legal effect and are enforceable." Id., 615. It held that "a planning commission's decision to settle an appeal by way of a stipulated judgment is not an official action or decision within the meaning of § 8-8(b), and, therefore, an appeal to the Superior Court pursuant to § 8-8(b) does not lie from that decision." Id., 618; see also Sendak v. Planning Zoning Commission, 7 Conn.App. 238, 508 A.2d 785 (1986). Thus, in the absence of statutory authority, there is no right of appeal from a planning commission's decision to settle an appeal by entering into a stipulated judgment. Brookridge District Assn., supra, 259 Conn. 611-12.
The plaintiff attempts to distinguish Brookridge District Assn., supra, 269 Conn. 607 from this case on the grounds that this case involves an appeal to the DPUC, rather than the Superior Court, and that this action stems from the denial of a stipulated agreement as opposed to the approval of a stipulated agreement. The court is not persuaded that these minor distinctions are legally relevant. Brookridge District Assn., supra 269 Conn 607, expressly states that in enacting § 8-8(b), the legislature intended to "authorize appeals only from those decisions that have legal effect and are enforceable." If a decision of a planning commission approving a settlement does not meet this test, then a decision of a planning commission to reject a stipulated agreement could not possibly meet this test as it would not constitute an enforceable decision. The plaintiff cites no authority to the contrary. Also, the fact that in this case the appeal was pending before the DPUC rather than the Superior Court when the defendant acted on the stipulated agreement, does not diminish the applicability of the Supreme Court's holding in Brookridge District Assn. This is particularly true here where the facts establish that it was the plaintiff who chose to appeal to the DPUC rather than the Superior Court and a decision of a planning commission to reject a stipulated agreement is not subject to Superior Court review under § 8-8(n).
The plaintiff claims that this case does not fall within the holding of Brookridge District Assn., supra, 259 Conn. 607, because the decision appealed from here was actually a decision to deny a revised application for a special permit and not a proposed stipulated agreement. Accordingly, the dispositive issue before the court is the nature of the action of the defendant on September 10, 2010, and whether the decision appealed from was a revised application or a proposed stipulated agreement. Because this issue involves a disputed factual issue, the court heard evidence on April 4, 2011. The parties submitted post-hearing briefs and the court heard arguments on July 19, 2011.
The court finds the plaintiff has failed to meet its burden to establish that it has appealed from an appealable decision under § 8-8(b) and, therefore, the court lacks subject matter jurisdiction. Based on the overwhelming evidence produced at the hearing, including testimony and exhibits submitted by the plaintiff, the court concludes that the parties, who were represented by counsel and experienced staff knowledgeable in zoning matters, understood they were submitting, and intended to submit, to the defendant a draft stipulated agreement. The public records and the draft document submitted to the defendant for its consideration on September 1, 2010, reveal that the defendant rejected the draft stipulated agreement and not a revised application for a special permit. The court renders these factual conclusions based on the following findings of fact.
On April 9, 2009, the plaintiff filed applications for special exception and site plan approvals to the defendant to allow it to construct a 750,000 gallon water storage tank on property it owns in the city of Danbury. The 2009 applications were accompanied by fees, forms and other filings required by the Danbury zoning regulations. The defendant held public hearings on the applications in the spring 2009. On July 1, 2009, it denied them. The plaintiff did not appeal the defendant's decision to deny the applications to the State of Connecticut but instead, on or about July 28, 2009, appealed the decision to the Department of Public Utility Control (DPUC), pursuant to General Statutes §§ 16-11 and 16-235.
While the plaintiff's appeal was pending at the DPUC, the parties engaged in extensive settlement negotiations in an attempt to resolve the DPUC appeal and, in particular, the concerns that lead the defendant to deny plaintiff's 2009 applications. During the course of these settlement discussions, which took place over an approximate nine-month period between September 2009 and June 2010, the plaintiff revised its site plans in accordance with the parties' discussions. Throughout the course of the settlement discussions, defendant's staff was courteous and helpful to the plaintiff in assisting it to revise the project in a way that might be acceptable to the defendant. The defendant's staff made it clear to the plaintiff that any settlement proposal reached between the parties would have to be submitted to, and approved by, the defendant.
The settlement negotiations were conducted among the staffs of the parties. For ease of reference, where appropriate, the court simply refers to the parties and their staffs collectively as the plaintiff or defendant.
In the spring of 2010, the parties reached an impasse in their negotiations and discussed how best to proceed to place the matter before the defendant and obtain a decision. The court finds credible the testimony of defendant's staff stating that they told the plaintiff that, in their view, there were two avenues to obtain a decision from the defendant on their proposed agreement: (1) the parties could present a proposed stipulated agreement to the defendant which would include revised plans; or (2) the plaintiff could submit a new application revised in accordance with the parties' discussions during their negotiations. In an attempt to assist the plaintiff in making its decision as to how to proceed, the defendant explained that if the plaintiff chose to file a new application, the application would be subject to statutory and regulatory notice and hearing requirements which could result in delays and a possible appeal by neighboring landowners or others. On the other hand, the defendant explained its view that there would be no appeal from a decision of the defendant to enter into a stipulated judgment and, therefore, should the plaintiff chose the stipulated judgment avenue, the process would likely take less time. In providing this information to the plaintiff, the defendant had no preference with respect to which avenue the plaintiff chose to pursue.
The plaintiff's proposal to construct a large water tank in the city of Danbury created significant controversy in the community.
After discussions with counsel, the plaintiff informed the defendant that it had decided not to file a new application, but preferred to submit the matter to the defendant as a proposed stipulated agreement to avoid lengthy delays necessitated by the application process. Consistent with its decision to proceed by way of a stipulated agreement, the plaintiff never filed a new application with the defendant, and did not comply with required regulatory requirements for filing applications such as paying the necessary fees, filing a list of abutters or other necessary procedures.
The court finds incredible Mr. Andrew Morosky's, plaintiff's public works' director, testimony that he did not file a new application, fees and other documents required by the regulations in 2010 because Danbury never told him he was required to do so. Putting aside the fact that Mr. Morosky was experienced in zoning matters, the requirements for applications were thoroughly explained to him by defendant's staff in 2009. Moreover, plaintiff's claim cannot be squared with Morosky's admission that the plaintiff expressly and knowingly chose the stipulated agreement route. The court finds that the reason the plaintiff did not file a new application, pay a new fee or comply with other required application procedures was because plaintiff chose the stipulated agreement route. No new application was therefore necessary.
Because the DPUC had closed its proceedings on plaintiff's appeal due to the parties' continued settlement negotiations, the parties agreed that in order for the defendant to consider a stipulated agreement on the DPUC appeal, it would be necessary to reopen the DPUC proceedings. On May 11, 2010, plaintiff's counsel filed a motion with the DPUC to reopen the proceedings which was granted.
Consistent with the defendant's informal procedures for considering stipulated agreements, on June 2, 2010, the defendant held an executive session at which its staff reported on the status of the settlement negotiations. At that meeting, the defendant authorized its staff and counsel to draft a proposed stipulated agreement and schedule a discretionary public hearing on the proposed agreement to allow the public to express its views on the proposal. In reliance on plaintiff's decision to proceed with a stipulated agreement and the defendant's authorization for it to do so, the defendant's staff and counsel drafted a draft stipulated agreement.
The draft document later presented to the defendant at a public hearing on July 27, 2010, was entitled " Draft Stipulated Agreement For Special Exception and Site Plan Approval (37 Long Ridge Road) (Planning Code SE 681)." (Emphasis added.) The draft stipulated agreement was in the nature of a typical agreement and includes several "Whereas" clauses setting forth the background leading up to the agreement, including facts related to the plaintiff's original application and DPUC appeal, and the details of the defendant's June 2010 executive session authorizing its staff to draft a stipulated agreement. The "Whereas" clauses are followed by specific numbered paragraphs setting forth the express terms of the parties' proposals for an agreement including a provision that the plaintiff's modified plans be identified and incorporated into the agreement. Although not required to do so, the defendant held a public hearing on the stipulated agreement and later, on September 1, 2010, the defendant rejected it.
The 2010 public records associated with defendant's consideration and rejection of the draft stipulated agreement, including the draft agreement itself, public hearing notices, minutes, transcripts, and correspondence between the parties, expressly refer to the hearings and actions of the defendant as involving the review of a stipulated agreement, not a revised application. Both parties agree that the plaintiff could, at any time, file a new application with the defendant, and that the pendency of this appeal or any decision reached by this court would not affect plaintiff's ability to do so.
Notwithstanding the parties' clear intent to proceed by way of a stipulation, the plaintiff claims that the decision appealed from here was the defendant's denial of its revised application because the defendant treated the matter as a proceeding on a revised application, not a settlement agreement. In support of its claim, plaintiff asserts that the defendant identified the stipulated agreement by using the 2009 docket number used to identify the 2009 application, held a public hearing and its public notices referred to statutory time limits, required for applications and not required for stipulated agreements. The court disagrees that these actions of the defendant are sufficient to transform the defendant's decision into a decision on an application, especially in view of the overwhelming oral and written evidence in the record to the contrary that the decision appealed from was the rejection of a stipulated agreement and not a revised application.
Additionally, the court found credible the testimony of the defendant's deputy planning director, that references to statutory timelines in certain public notices were clerical errors and not intentional.
The court is also not persuaded by plaintiff's claim that the submission of revised plans in accordance with the parties' agreement somehow transformed the proceedings and actions of the defendant to a decision on an application. The mere submission of a "plan" did not factually or legally constitute the filing of an application. Plaintiff's revised plans were not accompanied by a new application form, fees or a revised list of abutters, requirements that the plaintiff knew were necessary for consideration of an application or a revised application under the Danbury zoning regulations.
Both under state law and under Danbury's zoning regulations, there is a significant legal and factual difference between an application and a plan. The submission of a revised plan is not the same and does not have the same legal effect as filing a new application, see Jalowiec Realty Associates, L.P. v. Planning Zoning Commission, 278 Conn. 408, 898 A.2d 157 (2006), and therefore, the filing of a revised plan in conjunction with and pursuant to the parties' stipulated agreement, did not transform the defendant's decision into a decision on an application.
Cases cited by the plaintiff that the submission of a modified plan to conform to zoning requirements "automatically generates new or altered applications" do not stand for that proposition and are not applicable here. Those cases actually involved new or modified applications, which are allowed in special permit proceedings, and not, as here, the submission of revised plans without an application. In addition and importantly, those cases did not involve the plaintiff's intentional and knowing decision to forgo filing a new application, in favor of submitting a stipulated agreement to the Commission or a decision of the Commission to deny that agreement. See Carr v. Planning and Zoning Commission of the Town of Bridgewater, 273 Conn. 573, 872 A.2d 385 (2005); Koepke v. Zoning Board of Appeals of the Town of Coventry, CT Page 16529 230 Conn. 452, 645 A.2d 983 (1994); Grasso v. Zoning Board of Appeals of Groton Long Point Ass'n, Inc. 69 Conn.App. 230, 794 A.2d 1016 (2002). Additionally, as both parties conceded at argument, the plaintiff is free at any time to file a new or modified application with the defendant. Should the defendant deny the modified application, that decision would be appealable to this court pursuant to § 8-8(b).
Accordingly, the court finds from the overwhelming credible evidence presented at the hearing established that: (1) it was the express intention of both parties that the matter be presented to the defendant as a stipulated agreement and not a revised application; (2) the decision to present the proposal to the board as a stipulated agreement was the plaintiff's and not the defendant's decision; (3) because the plaintiff chose to proceed by way of a stipulated agreement as opposed to a revised application, it expressly did not file a revised application with the defendant; (4) the defendant held discretionary hearings on the draft stipulated agreement and those hearings did not, and were not intended to, transform the agreement into a revised application; and (5) on September 1, 2010, the defendant rejected the draft stipulated agreement that was intended to resolve the plaintiff's DPUC appeal.
The court concludes that the plaintiff has appealed from the defendant's decision rejecting the parties' draft stipulated agreement, and that decision is not appealable under Section 8-8(b) and the Supreme Court's decision in Brookridge District Assn., supra, 259 Conn. 607. Accordingly, the plaintiff's appeal is dismissed.
So ordered.