Opinion
No. CV06-4017472S
March 15, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In December 2005, the plaintiffs brought an administrative appeal pursuant to Sections 7-246a and 8-8 of the Connecticut General Statutes.
The complaint alleges that the plaintiffs applied to the Cheshire Water Pollution Control Authority (Authority) "for final design approval of a feasibility plan for the construction of a sanitary sewer system in an age restricted Planned Residential Development" on property owned by the plaintiff, Serenity Ranch. The plaintiffs, Brodach Builders, Inc. and Jay Brodach, have a contract to purchase this property. The application was made in July of 2004.
The complaint further alleges that on August 24th, the defendant Authority approved the plaintiffs' feasibility plan. But on November 30, 2005, the Authority "adopted an amendment to its regulations which provides no application for the extension of sanitary sewers shall be granted for the plaintiffs' property"; the effective date was January 1, 2006.
The plaintiffs further allege that the Authority acted illegally, arbitrarily and in abuse of the discretion vested in it. It is claimed:
a. this policy is inconsistent with Authority policy regarding the extension of sewers in residential R-40 zoned land;
b. the amendment was adopted without public hearings, notice to the plaintiffs that their land would be affected and without giving the plaintiffs an opportunity to be heard on the November 2004 amendment;
c. the amendment amounts to an unconstitutional taking of the plaintiffs' property without just compensation;
d. the Authority, in adopting the amendment, abdicated its responsibility under law to control the development of a sanitary sewage system "for the town."
The concluding wherefore clause in the complaint states that "the plaintiffs' appeal from the decision of the (Authority) adopting said amendment and prays that the court grant such relief as is proper."
The defendant Authority has now filed a motion to dismiss arguing that the court lacks subject matter jurisdiction because there is no statutory right to appeal from a decision by the Authority to amend its regulations.
It is not questioned that the Authority had the power, pursuant to § 7-247, to pass the November 2005 amendment to its regulations; the issues raised by the appeal only go to the propriety of the action taken. But the right to take an appeal from § 7-247 actions by a water pollution control authority only applies to certain actions under that statute. Section 7-246a reads as follows:
§ 7-246a. Applications. Time for decision. Appeal
(a) Whenever an application or request is made to a water pollution control authority or sewer district for (1) a determination of the adequacy of sewer capacity related to a proposed use of land, (2) approval to hook up to a sewer system at the expense of the applicant, or (3) approval of any other proposal for waste water treatment or disposal at the expense of the applicant, the water pollution control authority or sewer district shall make a decision on such application or request within sixty-five days from the date of receipt, as defined in subsection (c) of Section 8-7d, of such application or request. The applicant may consent to one or more extensions of such period, provided the total of such extensions shall not exceed sixty-five days.
(b) Notwithstanding any other provision of the general statutes, an appeal may be taken from an action of a water pollution control agency or sewer district pursuant to subsection (a) of this section in accordance with Section 8-8.
As the defendant states in its brief, the Authority's "decision to amend its regulations does not fall within any of the categories for which an appeal may be brought under General Statues § 7-246a."
It has been the law in our State since early times that "the right of appeal exists only under statute . . . and parties have no vested right thereto . . . It is not essential to the constitutionality of the statute which authorizes an administrative board to make orders . . . that it contain a provision for an appeal in a technical sense from the board's action." Bahr Corporation v. O'Brion, 146 Conn. 237, 246 (1959). Early cases recognized this proposition Etchells v. Wainwright, 76 Conn. 534, 541 (1904); Neilson v. Perkins, 86 Conn. 425, 428 (1913).
In Long v. Zoning Commission, 133 Conn. 248, 252 (1946) the court said that: "Appeals to the courts from administrative boards or officers exist only under statutory authority, and, unless a statute provides for them, courts are without jurisdiction to entertain them." See also Rybinski v. State Employees Retirement Commission, 173 Conn. 462, 472 (1977); Danziger v. Demolition Board, 18 Conn.App. 40, 44 (1989), cf. State v. Vachon, 140 Conn. 478, 485-86 (1953); Fishman v. Stamford, 159 Conn. 116 (1970), also see Diaz v. Board of Directors, 2 Conn.App. 43, 47-48 (1984). Under such circumstances, the appeal, as here, must be dismissed. And this is so even though, as in this case, a constitutional deprivation is claimed as it was in Rocky Hill Convalescent Hospital v. Metro. Dist., 160 Conn. 446, 456 (1971) (one of the claims made in dismissed appeal was taking of property without just compensation and without due process in violation of the State and Federal constitutions).
All of this does not mean that a person subject to a non-appealable administrative ruling which is felt to be unfair, incorrect, and/or violative of constitutionally protected rights is without the redress that access to the courts can provide. As said in Bahr Corporation, 160 Conn. At page 246: "If any person claims to be harmed by such an order, his (or her) constitutional right to due process of law is protected by (the) privilege to apply to a court," see also State v. Vachon, 140 Conn. At 485. In Danziger the court said: "This means that in such a case the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions." 18 Conn.App. at page 46, citing Diaz at 2 Conn.App. pp 47-48.
The plaintiffs, in their opposition to the motion to dismiss, catalogue their grievances against the process surrounding their feasibility plan for the construction of a sanitary sewage system. Monies were spent on the supposition the project would be approved based on what are claimed to be misleading actions by the Authority, no notice or hearing was provided on the amendment to the regulation. By adopting the regulation, there has been a "functional equivalent of a denial of their application." An unconstitutional taking has therefore been perpetrated. Assuming all of this is true, the point is that what occurred cannot be rectified by way of appeal; no appeal is statutorily provided from the Authority's action in amending its regulations so the court has no jurisdiction to hear the purported appeal.
But the plaintiffs can take their grievances to court by way of other mechanisms. In two separate pending actions, they have filed an administrative appeal of the Authority's denial of their application as well as a declaratory judgment action challenging the amendment on constitutional grounds. Plenary relief could or could have been sought by way of prohibitory or even mandatory injunctive relief.
In any event, for the foregoing reasons, the court will grant the motion to dismiss.