Opinion
No. CV 01-0485226 S
November 10, 2004
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this case the plaintiff Dowler filed an application to demolish an existing building and replace it with a new building which is still owned by the plaintiff Pine. The Director of Health for Guilford denied the application the purpose of which was to permit the construction of a new residence. He concluded the conversion to year-round residence would violate a state regulation. The plaintiffs appealed to the state Commissioner of Public Health pursuant to § 19-229 of the general statutes and § 19a-9-14 of the Regulations of Connecticut State Agencies. In a memorandum the Commissioner upheld the local health director and the plaintiffs then appealed to Superior Court pursuant to § 4-183 of the Uniform Administrative Procedure Act (UAPA).
The Assistant Attorney General has now field a motion to dismiss arguing that the court has no jurisdiction over the subject matter. As will be discussed, in a well-reasoned brief the defendant basically argues that dismissal must be granted because "the plaintiff's appeal is not from a `final decision' in a `contested case' as required by Connecticut General Statutes § 4-183. The Department maintains this is so because there is no state statute requiring the agency to hold a hearing on this matter." As the defendant points out the court in Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, (1993) made the following observation on this issue:
The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well-delineated circumstances, id. P. 800.
It is clear under the UAPA that a § 4-183 appeal will only lie from a final decision in a contested case. In Herman v. Division of Special Revenue 193 Conn. 379, 382 the court said that:
the test for determining "contested case status" has been well established and requires an inquiry into three criteria, to wit. (1) whether a legal right, duty or privilege is at issue (2) and is statutorily required to be determined by the agency (3) through an opportunity for a hearing or in which a hearing is in fact held.
In Summit Hydropower supra the court noted that "the legislature . . . has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which classes of cases qualify for contested case status reflects an important matter of public policy and the primary responsibility for formulating public policy must rest with the legislature," 226 Conn. at pp. 810-11.
In effect the agency's position is that despite § 19-229 which states that:
(a) Any person aggrieved by an order issued by a town . . . director of health may not later than forty-eight hours after the making of such order, appeal to the commissioner of Public Health, who shall thereupon immediately notify the authority from whose order the appeal was taken and examine into the merits of such case, and may vacate, modify or affirm such order.
an aggrieved party cannot take an appeal to Superior Court pursuant to § 4-183 which states:
(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. (emphasis added).
There is no "final decision" here because § 4-166(3) says that "a `final decision' means (A) the agency determination in a contested case." But the argument goes, there is no § 4-183 "final decision" here because the ambit of that term is defined or limited by subsection (2) of § 4-166 which states that:
"Contested case" means a proceeding, including but not limited to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statutes to be determined by an agency after an opportunity for a hearing or in which a hearing is in fact held . . . (emphasis added).
The agency's position is that the plain and unambiguous language of § 19a-229 does not provide for a "hearing" and just because a "hearing" was in fact held here "does not change the outcome." There must be a statutory right to such a hearing, see Summit Hydropower, supra 226 Conn. at page 800. The legislature, it is argued meant to give discretion to the agency as to how the commissioner may examine the "merits" of any case appealed under § 19a-229. Under § 19a-9-14 of the Regulations of Connecticut State Agencies providing for de novo proceedings on a § 19a-229 appeal the commissioner does give aggrieved parties an opportunity for a hearing but "a hearing required by agency regulation, rule or policy does not qualify as a contested case," Lewis v. Gaming Policy Board, 224 Conn. 693, 706 (1993), Terese B. v. Commissioner of Children and Families, 68 Conn.App. 223, 236 (2002).
Despite the well-written brief of counsel for the agency the court does not believe the motion to dismiss should be granted and concludes that § 19a-229 does provide an aggrieved party who appeals under its terms the right to have a hearing. The statute does not use the word "hearing" explicitly. But it does state a party to appeal must be "aggrieved" and that party may file an "appeal" of any order of a local public health director. Section 19a-229 then loses its permissive tone and says upon filing of the appeal the commissioner shall look into the matter on the merits. Nothing in the chapter concerned with Municipal Health Authorities of which § 19a-229 is a part indicates that parties who might be aggrieved have a right to intervene in any manner before the local health official or even the ability to offer any input into his or her decision. It would be an odd statutory scheme which then said, despite this, there is a right to appeal to the Commissioner, whereupon the commissioner must look into the merits and can deny or grant the relief requested but the party to the appeal does not have a statutory right to the input at the local level and only such input at the § 19a-229 proceeding as the Commissioner grants by grace, and no right under the UAPA to go to Superior Court by way of appeal.
The problem is that examining § 19a-229 by itself it can certainly be argued that, although there might be a certain amount of ambiguity, the statutory language does suggest a "hearing" before the Commissioner is contemplated.
The language of the underlying statutes in Lewis v. Gaming Policy Board, supra, and Terese B. v. Commissioner of Children and Families, supra, is quite different. These statutes do not even suggest the possibility of a hearing let alone any "proceeding" before the administrative agency. In Terese B. a foster parent took issue with the removal of a child from her home; the applicable statute read as follows: "Whenever it is found that any child is not properly treated in any foster family or that any such foster family is not a suitable one and is of such character as to jeopardize the welfare of any child so placed therein, the Commissioner of Children and Families, upon being satisfied of the ill treatment of the child or the unsuitableness of the foster family, shall remove the child from such foster family and take such further action as is necessary to secure the welfare of the child." (517a-100).
In Lewis the plaintiff appealed to Superior Court over his termination as head of the lottery unit of the division of special revenue. The plaintiff in effect based his right to appeal on § 12-559 CGSA which says "the executive director shall, with the advice and consent of the board, appoint unit heads for each of the units created within the division, who shall be exempt from classified service." The Supreme Court upheld the trial court that "found that the test of § 12-559 neither states nor suggests that the statutory right to appoint unit heads creates a corresponding statutory duty to determine, many type of proceeding, the right or privilege to a unit head to continue state employment."
The underlying statutory language in Lewis and Terese B. which, as held, must provide the predicate for UAPA review, is very different in this regard from that of § 19a-229.
The legislature itself in a later statutory enactment seems to have assumed § 19a-229 provided hearings for aggrieved parties who appealed. As Judge McWeeney points out in Dillon v. Department of Public Health, 1997 Conn. Super Lexus 2600 (1997) (J.D. Hartford), in speaking of disposal unit permits the legislature in § 22a-430 subsection (g) said that "Any permit denied by the commissioner of public health or a director of health or registered sanitarium shall be subject to hearing and appeal as provided in section 19a-229" (emphasis added). Judge McWeeney cited Petco Insulation Company v. Crystal, 231 Conn. 315, 323-24 (1994), which says that: "It is settled that statutes must be construed consistently with other relevant statutes because the legislature is presumed to have created a coherent body of law . . . In construing a statute, the court may look to other statutes relating to the same subject matter for guidance," cf Stuart v. Dept. of Correction, 221 Conn. 41, 45-4 (1992), State v. Hill 201 Conn. 505, 515 (1986), also see 73 Am.Jur.2d "Statutes" § 150, page 353. The court can think of no apparent reason why by its reference to and characterization of § 19a-229 in § 22a-430(q) the legislature would contemplate a § 4-183 appeal for the Water Pollution Control Act but not of state agency decisions under Chapter 368e governing Municipal Health Authorities.
There is a further observation made by Judge McWeeney which this court agrees with. Speaking of the right of review under § 4-183 of the Uniform Administrative Procedure Act (UAPA) the judge says:
Allowing for the UAPA review also serves a pragmatic effect of according an expeditious form of judicial review. The alternative would be a resolution of the underlying merits in enforcement proceedings or other vehicle of collateral challenge which could involved de novo determinations. If the administrative determination does not allow for judicial review, a collateral challenge must be allowed in enforcement proceedings. United States v. Mendoza-Lopez, 481 U.S. 828, 95 L.Ed.2d. 772, 107 S. Ct 2148 (1987).
Finally, the court would just add that the traditional respect given to administrative agencies regarding their interpretation of statutory language and how their statutory duties should be carried out has no bearing on the issue now before the court since questions of the manner of access to the courts and the vehicle to pursue such access can only be determined by the courts. In other words, the particular expertise of the administrative agency regarding application of the Public Health Code to the plaintiff's application regarding their property would be of little or no value in interpreting the legal effect of statatory language and access to the courts, cf Aaron v. Conservation Commission, 178 Conn. 173, 178 (1979), also see Powers v. Ulichny, 185 Conn. 145, 147 (1981).
Although it is a close question on which the trial courts are divided, for the foregoing reasons, the motion to dismiss is denied.
Corradino, J.