Opinion
No. CV 06-4022165
June 21, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The plaintiffs, Gary and Stephanie Phipps, alleged that they and their three minor children were ordered by William H. Blitz, the Director of Health for the North Central District Health Department to vacate their premises at 111 Pearl Street, Enfield due to the presence of illegal levels of lead paint in the unit and in the blood of their three-year-old child, Morena Phipps. They claim that pursuant to the Connecticut Uniform Relocation Act, (C.G.S. § 8-266 et. seq.), agencies and municipalities which displace persons for code enforcement activities are responsible for providing relocation assistance to those disposed persons who need housing assistance prior to displacing people for code enforcement activities. They maintain that despite requests, both the North Central District Health Department and the Town of Enfield refused to provide any relocation assistance to the Phipps family at the time that they were ordered to vacate their home at 111 Pearl Street, Enfield. The plaintiffs' action is brought in only one count which seeks only injunctive relief. The plaintiffs pray:
(1) That an injunction issue to compel the defendants to cease displacing any person due to code enforcement without complying with Connecticut General Statutes § 8-266 et seq.
(2) That the defendants identify and notify all persons previously displaced due to code enforcement of their right to relocation assistance through Connecticut General Statutes § 8-266 et seq.
(3) That this matter be certified as a class action pursuant to Practice Book Section 9-7.
The defendants have filed a motion to dismiss on the basis that the plaintiffs lack subject matter jurisdiction. They claim that the plaintiffs have failed to exhaust their administrative remedies and lack standing to bring this action.
A motion to dismiss is used to assert lack of jurisdiction over the subject matter. Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 12 (1990). Jurisdiction over subject matter is a question of law and cannot be waived or conferred by consent. Serani v. Board of Ethics, 225 Conn. 305, 308 (1993). Once the question of lack of jurisdiction of the court is raised, it must be disposed of no matter in what form it is presented and the court must fully resolve it before proceeding further with the case. Castro v. Viera, 257 Conn. 420, 433-34 (1988). Subject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Southern New England Telephone Company v. Department of Public Utility Control, 261 Conn. 1, 21 (2002). If a party fails to exhaust all administrative remedies available to it, it lacks the standing to appeal to the Superior Court. Conn. Gen. Stat. § 4-183. If adequate administrative remedies exist, they must be exhausted before the court has jurisdiction. The Exhaustion Doctrine reflects legislative intent that the issue be handled in the first instance by local administrative officials. Waterbury v. Washington, 260 Conn. 506, 529-30 (2002). Standing is the legal right that sets judicial machinery in motion. Blumenthal v. Barnes, 261 Conn. 434, 441 (2002). "Under our Exhaustion of Administrative Remedies Doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum in the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted). Drumm v. Brown, 245 Conn. 657, 676 (1998).
The defendant points out that there are three independent statutory rights of appeal that are relevant to the allegations of the Phipps complaint. First, the statutes provide for a right of appeal from a decision of a local director of health through the State Department of Public Health. C.G.S. § 19-229. Second, the statutes provide for a right of appeal from a decision concerning relocation assistance to the State Department of Economic and Community Development. C.G.S. § 8-266. Finally the statutes provide for a right of appeal to the Freedom of Information Commission for the failure of a governmental agency to respond to a freedom of information act request. C.G.S. § 1-206. The Phipps have not exhausted any of these remedies although in fact they did appeal under one of them. Section 8-266 is entitled "Uniform Relocation Assistance Act." Section 8-278 is the section of that act which provides for an appeal. The Phipps have actually filed an appeal with the Department of Economic and Community Development (DECD) seeking relocation assistance. This appeal is still current. As to C.G.S. § 1-206, plaintiffs requested of the Freedom of Information Commission that they "identify and notify all persons previously displaced due to code enforcement of their right to relocation assistance under C.G.S. § 8-266, et seq." The district responded in the negative but the Phipps have not filed any appeal to the Freedom of Information Commission concerning that response.
Both parties quote from Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486 (2003) to the effect that 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, with each view fairly and vigorously represented. Alves, supra, 262 Conn. at 486. Both parties quote from Alves to the effect that these two objectives are met when the plaintiff makes a colorable claim of direct injury he has suffered or is likely to suffer. Alves, supra 262 Conn. at 486. This direct injury standard is described as "aggrievement" and two distinct catagories of aggrievement exist, statutory and classical. "Statutory aggrievement" exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Alves at p. 487.
Each party agrees that in order to achieve standing in this case one would have to qualify under "classical" aggrievement. Classical aggrievement requires a two-part showing. First, the party must demonstrate a specific personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. Second, the party must also show that the actions have specifically and injuriously affected that specific personal or legal interest. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. Alves, supra 262 Conn. at 487.
The plaintiffs claim to be classically aggrieved in that they have experienced injuries resulting from the actions of the North Central District Health Department and the Director of Health. Plaintiffs claim that they are classically aggrieved because they have "suffered several injuries due to the defendants' actions." However, the harms which they claim to have already incurred have already been suffered and cannot be remedied by the equitable relief which they seek. Their injuries do not amount to the specific and personal and legal interests required to meet the test for classical aggrievement. They further claim that they have a required interest in this action to meet the test for classical aggrievement because they "remained residents of Enfield so the possibility exists that they could be forced to relocate from their home in the future." While such a possibility exists, there is no indication at all that they are in any imminent risk of harm. Rivera v. Rowland, Superior Court, Docket No. 545629, 10-2396. To meet the test for classical aggrievement the plaintiffs must demonstrate a specific personal and legal interest in the subject matter of the decision as opposed to a general interest that all members of the community share. The injunctive relief the plaintiffs seek is for the benefit of the community as a whole.
It is the opinion of this court that the plaintiffs lack standing to pursue these requests for an injunction. The motion to dismiss is granted.