Opinion
FSTCV166027670S
06-07-2016
Friends of Ryan Park, Inc. v. Harry Rilling in His Official Capacity as Mayor
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS No. 103.00 AND OBJECTION (113.00)
EDWARD R. KARAZIN, JR., JUDGE
Before this court is the defendants' motion to dismiss the plaintiff's complaint pleading 103.00. The objection is pleading 113.00. For the reasons set forth below, the court grants the defendants' motion to dismiss and overrules the objection because the plaintiff's claims are not ripe for adjudication.
The plaintiff, Friends of Ryan Park, Inc. (FORP) commenced this action on February 16, 2016, and filed a second amended complaint on April 1, 2016. The plaintiff's claims center on Ryan Park, an approximately two acre public park located in Norwalk. The plaintiff is a nonprofit corporation that periodically makes improvements to Ryan Park and hosts different community programs, such as summer camps, at the park. The second amended complaint alleges that, as part of a redevelopment project, the defendants are taking public park land from Ryan Park in violation of General Statutes § 7-13 ln and are destroying trees in Ryan Park in violation of the Connecticut Environmental Protection Act (CEPA), § 22a-1, et seq.
The second amended complaint alleges the following facts: Ryan Park is located across the street from Washington Village, a public housing complex, and diagonally across from an undeveloped parcel of land owned by Norwalk. Both of these properties, Washington Village and the undeveloped parcel, lie within the 100 year floodplain. Beginning in 2013, the Norwalk Housing Authority, the Norwalk Redevelopment Agency, and the Connecticut Department of Housing began planning to redevelop Washington Village and the undeveloped parcel of land neighboring it. The plaintiff alleges that each defendant is involved in devising and executing this redevelopment plan.
In furtherance of the redevelopment plan, the defendants sought a state flood management certification exemption from the Department of Energy and Environmental Protection (DEEP). In order to obtain an exemption, DEEP required that the defendants propose a pedestrian evacuation route from Washington Village to an area outside of the floodplain. The objective of the path of dry egress was to demonstrate the feasibility of building a route of safe passage from Washington Village to dry land in the event of a flood. In their application to DEEP, the defendants proposed a route that passes through Ryan Park. Ultimately, DEEP granted the defendants' flood management certification exemption.
The plaintiff alleges that the proposed path of dry egress will take away public park land and will require trees to be removed. The proposed path may also adversely affect other features of the park, such as a human sized chess board. Presently, the precise route, width, and height of the path have not been determined. Although the path of dry egress was relied on in the defendants' DEEP application, the path has not been proposed to or approved by the Norwalk Common Counsel or any of its committees.
On March 4, 2016, the defendants jointly moved to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the plaintiff's claims because the claims are not ripe for adjudication. The defendants also raised claims for lack of personal jurisdiction due to improper service and lack of subject matter jurisdiction due to the plaintiff's lack of standing, however, the claim based in ripeness is dispositive and the court need not address the remaining claims. The plaintiff filed an objection to the defendants' motion to dismiss on April 22, 2016. The court heard oral argument at short calendar on April 25, 2016.
The defendants' motion to dismiss contends that the controversy raised by the plaintiff is not certain to occur, making the plaintiff's claims unripe for adjudication. The defendants argue that the cause of action stated in count one is not ripe because the plan for the path is merely a proposal that has not been approved by the Mayor's Advisory Committee on Ryan Park, the Recreation and Parks Committee, or the Norwalk Common Counsel. The defendants allege that count two is not ripe for adjudication because whether trees need to be removed is dependent on the route and size of the path, which has not been finalized.
In response, the plaintiff argues that their claims are ripe for adjudication because there is a substantial likelihood that the path of dry egress will be constructed through Ryan Park and will require the removal of trees. The plaintiff notes that no other route of dry egress avoiding Ryan Park has been proposed. The plaintiff contends that the proper standard for assessing ripeness is that the plaintiff's claims are ripe if the damage resulting from the path is likely to occur, as opposed to merely being hypothetical.
" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [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). Nevertheless, " [w]hen a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Bingham v. Department of Public Works, 51 Conn.Supp. 590, 593, 16 A.3d 865 (2009) (quoting from State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
" [R]ipeness is a sine qua non of justiciability . . . An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction . . . If it becomes apparent to the court that such jurisdiction is lacking, the [cause of action] must be dismissed." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009). The purpose of the ripeness requirement is " to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ." (Citation omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003). " [The court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." Id.
In Milford Power Co., LLC, the Supreme Court held that " because the plaintiff's claims were contingent on the outcome of a dispute that had not yet transpired, and indeed might never transpire, the injury was hypothetical and, therefore, the claim was not justiciable." Milford Power Co., LLC, supra, 263 Conn. 627. Further, the court concluded that " there was no actual issue in dispute. The plaintiff sought a declaratory judgment, not to settle a present controversy, but rather to avoid one in the future." Id., 629.
In Bingham, supra, 51 Conn.Supp. 590, state residents brought an action under the CEPA alleging a reasonable likelihood that the Department of Public Works' sale of surplus land would result in the unreasonable pollution of natural resources. The Superior Court held that " [n]otwithstanding a plaintiff's statutory right under § 22a-16 to challenge conduct that is reasonably likely to harm the environment in the future, the ripeness requirement makes it clear that an action cannot be prosecuted unless and until an actual issue is in dispute between the parties." Bingham, supra, 599.
Further, the court in Bingham, supra 51 Conn.Supp. 590, stated that " [c]laims premised on future events may of course be justiciable, despite their contingent nature, where the events, though contingent, are inevitable" Id. The court concluded that " [i]n order to square the concept of ripeness with the Court's authority under § 22a-16 to afford declaratory and injunctive relief to plaintiff's challenging conduct claimed reasonably likely to harm the environment in the future upon the occurrence of contingent future events, the plaintiff must plead that the occurrence of such contingent future events itself is reasonably likely to occur. Where, then, the contingent future event allegedly threatening to cause unreasonable harm to the environment is development, an official plan of development must at least be proposed, if not finally adopted and put in motion . . . Only then can the challenged transfer of the subject property be found reasonably likely to cause unreasonable harm to the environment. In the end, although a plaintiff need not wait until development has actually begun to make his challenge, the plaintiff's claim must be dismissed for lack of ripeness if it is brought prior to the adoption or proposal of such a plan." (Citation omitted; footnote omitted.) Id., 601.
Viewing the pleadings in the light most favorable to the plaintiff, the defendants created a conceptual path of dry egress in order to demonstrate that such a path was logistically feasible to DEEP. The exact route, width, and height of the proposed path are not finalized. A formal and specific proposal for the path has not been presented to the Common Council for approval. This case is analogous to Bingham, supra, 51 Conn.Supp. 590 where the court determined that a claim for a violation of CEPA was not ripe for adjudication when an official plan of development was not proposed or adopted. Absent a showing that the defendants' plan for a path of dry egress has been finalized and proposed for approval, this court cannot conclude that the alleged harm is reasonably likely to occur. The court cannot conclude whether a taking of public park land in violation of § 7-13 in is reasonably likely to occur until the defendants have finalized a specific proposal to engage in such conduct. Further, the court cannot conclude that it is reasonably likely that trees may be unreasonably destroyed, in violation of § 22a-16, until the defendants propose a plan that identifies how the trees will be affected. Until such a time, the court is unable to adjudicate this matter. Similar to Milford Power Co., LLC, supra, 263 Conn. 627, the plaintiff has not asked the court to settle a present controversy, but rather to avoid a future one. Until the plaintiff's alleged injury shifts from hypothetical to reasonably likely, the court lacks jurisdiction to hear the plaintiff's claims. By reason of the forgoing, the court finds that the plaintiff's claims are not ripe for adjudication. Accordingly, the court does not have jurisdiction and count one and two of the plaintiff's second amended complaint pleading 105.00 dated March 7, 2016 are dismissed. Motion 103.00 is granted. Objection 113.00 is overruled.
SO ORDERED.