Opinion
No. CV 00-0801052
April 12, 2001
MEMORANDUM OF DECISION MOTION TO DISMISS
In this action, the plaintiffs seek a declaratory judgment and injunctive relief against the defendants in connection with a planned housing development in the Town of Simsbury. The plaintiffs are Riverbend Associates, Inc. (Riverbend) and Griffin Land and Nurseries, Inc. (Griffin). Riverbend is a wholly owned subsidiary of Griffin. The defendants are the Town of Simsbury (Simsbury) and the Simsbury Water Pollution Control Authority (WPCA).
Riverbend is the owner of a 363 acre parcel of land in the north end of Simsbury. Although the 363 acre parcel is zoned for single-family residential development on subdivided lots of at least 40,000 square feet or 80,000 square feet, it has been used for decades for commercial agriculture. In November, 1999, the plaintiffs and Fairfield 2000 Homes Corporation (Fairfield), a non-profit housing organization, applied to the land use commissions of Simsbury or several permits necessary to develop a 640 unit residential development (Meadowood). These land use applications were sought pursuant to General Statutes § 8-30g, the affordable housing statute, because the plaintiffs and Fairfield had agreed to preserve at least 25 percent of the homes for thirty years within the economic reach of low or moderate income households. The Meadowood plan proposed four types of homes: homes for low and moderate income families; detached homes built in clusters on common ownership lots; post-family homes for active adults or "empty nesters"; and traditional, luxury homes on subdivided lots.
General Statutes § 8-30g (a) provides in part: "(a) As used in this section: (1) `Affordable housing development' means a proposed housing development (A) which is assisted housing or (B) in which not less than twenty-five per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that, for at least thirty years after the initial occupation of the proposed development, (i) such dwelling units shall be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a."
The WPCA is the agency established by Simsbury pursuant to General Statutes § 7-246 (a) to exercise the powers granted by state law with respect to municipal sewerage systems. The WPCA has adopted a plan identifying areas in Simsbury where developments may be connected to Simsbury's sewer system and, therefore, may discharge sewage into the treatment plant operated by Simsbury. Simsbury's treatment plant is located adjacent to the Farmington River, where it discharges treated sewage. The WPCA allocates a specific sewage disposal capacity to individual parcels within the Town's sewer district of the 363 acres of the Meadowood property, 267 are within the Town's sewer service area. The WPCA has allocated a sewage disposal capacity of approximately 110,900 gallons per day to the 267 acres of Meadowood property within Simsbury's sewer service area.
General Statutes § 7-246 (a) provides: "Any municipality may, by ordinance, designate its legislative body, except where the legislative body is the town meeting, or any existing board or commission, or create a new board or commission to be designated, as the water pollution control authority for such municipality. Any municipality located within the district of a regional water authority or regional sewer district established under an act of the General Assembly may designate such water authority or sewer district as the water pollution control authority for such municipality, with all of the powers set forth in this chapter for water pollution control authorities, provided such water authority or sewer district agrees to such designation. . . . The water pollution control authority of the sown within which there is a city or borough shall not exercise any power within such city or borough without the express consent of such city or borough, except that such consent shall not be required for any action taken to comply with a pollution abatement order issued by the Commissioner of Environmental Protection."
The original Meadowood development plan filed in November, 1999, proposed 595 residential homes within Simsbury's sewer service district and forty-five homes outside the sewer district on subdivided lots with on-site septic systems. The homes within the sewer district would have required sewage disposal capacity of approximately 300,000 gallons per day. In order to provide sewage disposal capacity for the portion of the Meadowood plan within the sewer area, the plaintiffs applied to the WPCA, in conjunction with their land use permit applications, for permission to transfer to the Meadowood parcel 190,000 gallons of sewage disposal capacity from a 122 acre, industrial zoned parcel (industrial parcel) that is located one-half mile east of Meadowood and is owned by the plaintiffs. The WPCA previously had allocated approximately 382,000 gallons of disposal capacity to the industrial parcel. Additionally, the plaintiffs proposed a restrictive covenant limiting the industrial parcel to the disposal capacity remaining after the transfer. In the past, the WPCA has allowed sewer capacity transfers between separate properties as long as the parcels at issue discharge into the same interceptor. Meadowood and the industrial parcel discharge into the same interceptor line. On March 7, 2000, the WPCA denied the plaintiffs' transfer request, stating that the transfer would leave the industrial parcel without adequate capacity for industrial development and that the Meadowood plan would result in operational problems in the collection system and at the sewage treatment plant.
Thereafter, the plaintiffs reduced the Meadowland development plan to a total of 371 homes. The revised plan consisted of 269 homes connected to Simsbury's public sewer, utilizing the 110,900 gallons of disposal capacity available to the Meadowood parcel, and fifty-five homes within the sewer system area but located on subdivided lots and served by individual, on-site septic systems. The revised plan also proposed forty-seven homes located outside the sewer service area with on-site septic systems.
With respect to the 102 homes utilizing on-site septic systems in the revised plan, the plaintiffs applied to the Farmington Valley Health District (FVHD) in May, 2000, for approval of the septic systems. The department of health services (DOHS) has authority to regulate and issue permits for on-site subsurface sewage disposal systems for single family homes or to delegate that authority to other agencies. The FVHD is the agency designated by the DOHS to process applications in Simsbury and issue permits for on-site household septic systems with capacities of less than 5,000 gallons per day. The plaintiffs conducted soil tests under the FVHD's supervision on each proposed lot to demonstrate whether these systems could be developed consistent with the DOHS' regulations. On June 13, 2000, the FVHD issued a letter to Simsbury approving the soils on all but two of the 102 proposed lots as being capable of supporting on-site septic systems consistent with public health standards.
On May 23, 2000, the plaintiffs submitted their revised development plan to the WPCA, seeking approval of the proposed connection of the 269 homes to Simsbury's sewer system. The plaintiffs allege that, at a June 8, 2000 meeting, the members of the WPCA announced that they "had a `practice' of not permitting septic systems within the Town's sewer service area." (Complaint, ¶ 32.) The plaintiffs allege that, despite this "practice," there are currently several dozen residential homes with on-site septic systems within the sewer service area of Simsbury.
At a June 28, 2000 meeting, the WPCA voted to issue a letter, which was sent June 29, 2000, prohibiting the plaintiffs from installing the septic systems in the sewer district for several reasons. First, the WPCA noted its practice of requiring new construction units to be connected to available sewers. Second, the WPCA indicated that primary septic systems can fail, which results in residential homes being hooked up to sewer systems. The plaintiffs allege that as a result of its position regarding the on-site septic system units, the WPCA failed to act on the primary portion of the plaintiffs' application, that portion requesting approval to connect the 269 homes to the public sewer system. The plaintiffs contend that the WPCA continues to acknowledge that the 110,000 gallons allocated to this land would remain available for this purpose.
The plaintiffs allege that the WPCA's assertion of jurisdiction over, and its prohibition of, the construction of on-site septic systems within the sewer service district is ultra vires because neither state statutes, regulations nor local ordinances authorize water pollution control authorities to prohibit septic systems within sewer service areas. The plaintiffs also allege that the WPCA's actions regarding the on-site septic systems is preempted by state statutes and regulations, which delegate authority to regulate household septic systems to the DOHS and its designees, who have, in fact, approved all but two of the proposed septic systems. The plaintiffs allege further that the WPCA is not authorized to enforce the state building code, and alternatively, that the WPCA's actions violate the building code because the code permits septic systems. Finally, the plaintiffs allege that the defendants have violated General Statutes § 8-2, which the plaintiffs contend requires municipalities to encourage housing development consistent with existing soil types.
General Statutes § 8-2 provides in part: "(a) The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards."
The plaintiff's request the following relief: a declaratory judgment as to whether the defendants are empowered to prohibit the proposed construction on the Meadowood property of on-site household subsurface sewage disposal systems with a design flow of less than 5,000 gallons per day; a permanent injunction against the defendants prohibiting them from enforcing a policy or practice of banning the construction of residential homes with on-site subsurface sewage disposal systems that have otherwise been approved by the FVHD as complying with the state requirements for such systems; an order of notice of the nature of the declaratory and injunctive relief sought herein; and any other relief that the court deems appropriate.
Pending before the court is the defendants' motion to dismiss on the ground that the court lacks subject matter jurisdiction to hear this case because the plaintiffs have failed to exhaust their administrative remedies.
I
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "In ruling upon whether a complaint survives a motion to dismiss, 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). A motion to dismiss is the appropriate vehicle with which to challenge the court's subject matter jurisdiction. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996).
"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . Exhaustion is required even in case where the agency's jurisdiction over the proposed activity has been challenged)" (Citations omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995). The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. . . . The doctrine . . . furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review. . . . Most important, a favorable outcome will render review by the court unnecessary [because] as the United States Supreme Court has noted: A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. McKart v. United States, [ 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)]." (Internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 95, 726 A.2d 1154 (1999). "Furthermore, [b]ecause the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether the doctrine requires a dismissal of the plaintiffs' claim." (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993).
A
In support of their motion, the defendants first argue that the plaintiffs had the opportunity to request a hearing before the commissioner of the department of environmental protection (DEP) but failed to do so and, therefore, failed to exhaust their administrative remedies. According to the defendant, General Statutes § 22a-430(f) gives the commissioner the ability to delegate the authority to issue permits and approvals for household and small commercial disposal systems to either the WPCA or DOHS. The defendants maintain that in order to determine to which agency the commissioner had delegated that authority under § 22a-430(f), and in order to reconcile that delegation with General Statutes §§ 22a-430(g) and 7-246(b), the plaintiffs should have appealed to the DEP pursuant to General Statutes § 22a-436.
General Statutes § 22a-430(f) provides in part: "The commissioner may, by regulation, establish and define categories of discharges, including but not limited to, residential swimming pools, small community sewerage systems, household and small commercial disposal systems and clean water discharges, for which he may delegate authority to any other state agency, water pollution control authority, municipal building official or municipal or district director of health to issue permits or approvals in accordance with this section or to issue orders pursuant to sections 22a-428, 22a-431, 22a-432 and 22a-436. . . . Any permit denied or order issued by any such agency, authority, official or director shall be subject to hearing and appeal in the manner provided in sections 22a-436 and 22a-437. Any permit granted by any such agency, authority, official or director shall thereafter be deemed equivalent to a permit issued under subsection (b) of this section."
General Statutes § 22a-430(g) provides: "The commissioner shall, by regulation adopted prior to October 1, 1977, establish and define categories of discharges which constitute household and small commercial subsurface disposal systems for which he shall delegate to the Commissioner of Public Health the authority to issue permits or approvals and to hold public hearings in accordance with this section, on and after said date. The Commissioner of Public Health shall, pursuant to section 19a-36, establish minimum requirements for household and small commercial subsurface disposal systems and procedures for the issuance of such permits or approvals by the local director of health or a sanitarian registered pursuant to chapter 395. As used in this subsection, small commercial disposal systems shall include those subsurface disposal systems with a capacity of five thousand gallons per day or less. Any permit denied by the Commissioner of Public Health, or a director of health or registered sanitarian shall be subject to hearing and appeal in the manner provided in section 19a-229. Any permit granted by said Commissioner of Public Health, or a director of health or registered sanitarian on or after October 1, 1977, shall be deemed equivalent to a permit issued under subsection (b) of this section."
General Statutes § 7-246(b) provides: "Each municipal Water pollution control authority designated in accordance with this section may prepare and periodically update a water pollution control plan for the municipality. Such plan shall designate and delineate the boundary of: (1) Areas served by any municipal sewerage system; (2) areas where municipal sewerage facilities are planned and the schedule of design and construction anticipated or proposed; (3) areas where sewers are to be avoided; (4) areas served by any community sewerage system not owned by a municipality and (5) areas to be served by any proposed community sewerage system not owned by a municipality. Such plan shall also describe the means by which municipal programs are being carried out to avoid community pollution problems. The authority shall file a copy of the plan and any periodic updates of such plan with the Commissioner of Environmental Protection and shall manage or ensure the effective management of any community sewerage system not owned by a municipality."
General Statutes § 22a-436 provides in part: "Any person who or municipality which is aggrieved by any such order or decision to deny an application or, in the case of a permit issued pursuant to the federal Water Pollution Control Act, any decision without prior hearing under subsection (b) or (c) of section 22a-430 may, within thirty days from the date such order or decision is sent, request a hearing before the commissioner."
The plaintiffs argue that § 22a-430(f) is inapplicable because the plaintiffs did not apply to the WPCA for permits for the fifty-five septic systems. The plaintiffs contend that their application to connect to the sewer system was made pursuant to § 7-246, not § 22a-430(f). The plaintiffs also argue that § 22a-430(f) does not direct this case to the DEP because § 22a-430(g) vests the authority in the DOHS to establish and define categories of discharges for household and small commercial subsurface disposal systems. Lastly, the plaintiffs assert that the present action involves a request for a statutory interpretation regarding the powers delegated to a municipal agency and, thus, falls outside of the expertise and statutory authority of the DEP.
"The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case. . . . In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Quinet, 253 Conn. 392, 413-14, 752 A.2d 490 (2000). The Supreme Court has held that "where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." (Internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 12, 756 A.2d 262 (2000); see also Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 623, 577 A.2d 1017 (1990). "Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application or the doctrine would be consistent with the statutory scheme. . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Citations omitted; internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, supra, 248 Conn. 96-97. "When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act — that is, to determine the coverage of the statute — and this question need not, and in fact cannot, be initially decided by a court." (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 558.
Section 22a-430(f) authorizes the commissioner to delegate the authority to establish categories of discharges for sewerage and disposal systems to any state agency or water pollution control authority. A disposal system is defined as "a system for disposing of or eliminating wastes, either by surface or underground methods. . . ." General Statutes § 22a-423. Section 22a-436 provides that and person aggrieved by an order denying an application pursuant to § 22a-430(f) first may request a hearing before the DEP. Once a hearing before the commissioner is held, any person aggrieved by that decision may appeal to the Superior Court pursuant to General Statutes § 22a-437.
General Statutes § 22a-437 provides in part: "Any person who or municipality which is aggrieved by a decision under subsection (b) or (c) of section 22a-430 or by any order of the commissioner other than an order under section 22a-6b, to abate pollution may, after a hearing by the commissioner as provided for in section 22a-436 or subsection (b) or (c) of section 22a-430, appeal from the final determination of the commissioner based on such hearing to the Superior Court as provided in chapter 54."
Section § 22a-430(g) authorizes the commissioner of DEP to delegate the authority to establish and define categories of discharges that constitute household and small commercial subsurface disposal systems and to issue permits and approvals to the commissioner of the DOHS. General Statutes § 19a-229 provides that any person aggrieved by an order made pursuant to § 22a-430(g) may appeal to the commissioner of the DOHS within forty-eight hours. See Pinchbeck v. Dept. of Environmental Protection, Superior Court, judicial district of Hartford, Docket No. 583410 (September 28, 1999, Teller, J.).
General Statutes § 19a-229 provides: "Any person aggrieved by an order issued by a town, city or borough 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."
The legislative history of § 22a-430(g) clarifies that the DOHS has authority over subsurface septic system with capacities of 5,000 gal1ons a day or less. Senator Murphy explained that "what this Bill does is require the Commissioner of the Department of Environmental Protection to establish, by regulations, and regulate household and small commercial categories of water pollution discharges and he delegates his authority to issue the permits with the approval of these discharges, to the Commissioner of Health." 20 S. Proc., Pt. 5, 1977 Sess., p. 1995; see also Conn. Joint Standing Committee Hearings, Environment, 1977 Sess, p. 819-20. Although the plaintiffs argue that their application to the WPCA was make pursuant to § 7-246 and that it does not fall within § 22a-430(f), the plaintiffs' complaint concedes that the "regulation and permitting of on-site subsurface sewage disposal systems for single-family homes is delegated by statute and regulation to the DEP and the Department of Health Services." (Complaint, ¶ 11.) Thus, the plaintiffs' claim that the denial of their permit does not fall within the purview of the DEP is inconsistent with a plain reading of their complaint. Although § 22a-430(g) specifically delegates authority over septic systems to the DOHS, in some instances, state and local agencies may have overlapping jurisdiction. See General Statutes § 22a-2a(d); Aaron v. Conservation Commission, 183 Conn. 532, 552, 441 A.2d 30 (1981).
General Statutes § 22a-2a(d) provides: "Notwithstanding any delegation of authority pursuant to this section, the commissioner of environmental protection shall retain authority to act under the provisions of said sections and any decision by the commissioner shall preempt the decision of a designee.
General Statutes § 22a-2(a) provides in part: "There shall be a Department of Environmental Protection which shall have jurisdiction over all matters relating to the preservation and protection of the air, water and other natural resources of the state." (Emphasis added.)
General Statutes § 22a-2a(a) provides: "The Commissioner of Environmental Protection may designate as his agent any state or regional agency, municipality, or public water utility operated by a municipality or other political subdivision of the state or employee thereof and delegate to such agent the authority to inspect in connection with the enforcement of or to enforce any of the provisions of chapters . . . 446k . . . or any regulation, permit or order issued pursuant thereto, except the authority to render a final decision, after a hearing, assessing a civil penalty in accordance with the provisions of section 22a-6b. Any designation of authority by the commissioner shall be with the consent of such state or regional agency, municipality or public water utility operated by a municipality or other political subdivision of the state. Delegation of authority to an agent of such a public water utility shall be limited to inspection authority and such delegation shall include provision for training of inspectors, in a manner specified by the Commissioner of Environmental Protection. The expense for such training shall be borne by the designated public water utility seeking such designation."
Thus, the commissioner has the authority to delegate to any state, regional agency, municipality or other political subdivision of the state the ability to inspect or enforce the provisions of the water pollution control chapter, which includes §§ 22a-430, 22a-436 and 22a-437, pursuant to § 22a-2a(d).
The plaintiffs rely on Aaron v. Conservation Commission, 178 Conn. 173, 422 A.2d 290 (1979), for the proposition that there is an except on to the exhaustion of administrative remedies doctrine for jurisdictional questions. The plaintiffs' reliance on Aaron v. Conservation Commission, supra, 178 Conn. 173, is misplaced. In that case, the Supreme Court provided that "declaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency's decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal." Id., 178. Subsequent cases, however, have clarified the issue of jurisdictional challenges and the exhaustion of administrative remedies doctrine and, while not expressly overruling Aaron v. Conservation Commission, supra, 178 Conn. 173, have seemed to ignore the proposition that the plaintiffs rely on. In OG Industries, Inc. v. Planning Zoning Commission, supra, 232 Conn. 425, the Supreme Court provided that "[e]xhaustion is required even in cases where the agency's jurisdiction over the proposed activity has been challenged." (Internal quotation marks omitted.) Relying on federal precedent, the Supreme Court provided that "[t]he right to appeal a decision of an administrative agency exists only under statutory authority. . . . A plaintiff seeking a right to appeal under § 4-183 must exhaust all administrative remedies. It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 622.
The plaintiff's claim to bring their declaratory judgment action pursuant to § 7-246, which outlines the powers of water pollution control authority boards but does not provide for recourse for violations. "Under § 7-246, a municipal WPCA is empowered as part of its overall responsibility, to plan for the treatment and disposal of sewage within the municipality, to designate and delineate the boundaries of areas where sewers are to be avoided." (Internal quotation marks omitted.) Fairfield 2000 Homes v. Planning and Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 578756 (March 19, 1999, Mottolese, J.). A WPCA is a separate municipal entity created pursuant to General § 7-246." Housing Authority v. Water Pollution Control Authority, Superior Court, judicial district of New London at Norwich, Docket No. 102447 (April 19, 1996, Teller, J.) ( 16 Conn.L.Rptr. 496, 496). "Section 7-246 (b) is permissive in nature. There is nothing mandatory in the statute." D'Amato v. Water Pollution Control Authority, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 037123 (February 15, 1996, Curran, J.).
See footnotes 2 and 6 of this memorandum.
Section 7-246 does not authorize lawsuits for violations of the specific powers granted through its provisions to water pollution control authority boards. An appeal to the Superior Court from a decision of an administrative agency is a matter of legislative grace. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 622. Like the plaintiffs in Cannata, the plaintiffs in the present action only may seek an appeal to the Superior Court pursuant to General Statutes § 4-183(a) and, therefore, must exhaust all of their administrative remedies before they do so. Id.; see also Polymer Resource, Ltd. v. Keeney, supra, 227 Conn. 558.
General Statutes § 4-183(a) provides: "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. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal."
Although the legislative history of § 22a-430(g) indicates that the DOHS has authority over subsurface septic systems, the primary issue in this case is whether the WPCA's actions with respect to the plaintiffs' applications were ultra vires. More specifically, the issues are whether the WPCA had the authority to deny the plaintiffs' application to connect to the Simsbury sewer system because some of the planned homes within Simsbury's sewer service area would have on-site septic systems and whether the actions of the WPCA are preempted by § 22a-230(g). Determining whether the WPCA has exceeded its statutory authority may be the subject of an administrative appeal. Housing Authority v. Papandrea, 222 Conn. 414, 424, 610 A.2d 637 (1992). In light of the general rule that an administrative agency must determine whether it has jurisdiction in a particular situation; Polymer Resource, Ltd. v. Keeney, supra, 227 Conn. 558; and the requirement that administrative appeals be made pursuant to statutory authority; Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 622; the DEP would be the proper agency, consistent with its powers under §§ 22a-2(g) and 22a-2a(d), to review the WPCA's conduct in the present action. Therefore, the court finds that the plaintiffs failed to exhaust their administrative remedies by not appealing to the DEP pursuant to § 22a-436 to determine the authority of the WPCA over subsurface sewerage systems in light of the potential jurisdictional overlap evident in §§ 22a-430(f), 22a-40(g) and 7-246(b).
B
The defendants alternatively argue that the plaintiffs should have sought a declaratory ruling pursuant to General Statutes § 4-176 from the DEP to determine whether the WPCA had the authority to require that residential homes constructed within Simsbury's sewer service areas must be connected to Simsbury's sewer system. The defendants contend that subsections (f) and (g) of § 22a-430 grant the DEP the authority over subsurface disposal systems but that those provisions are unclear as to which agencies the DEP may delegate that authority. The defendants maintain that since the WPCA and the DOHS obtain their authority through the DEP, the DEP is the appropriate agency to determine the scope of the WPCA's jurisdiction over septic systems. Furthermore, the defendants assert that an initial ruling by the DEP is appropriate because the plaintiffs' claim is essentially that the DEP did not delegate certain powers to the WPCA.
General Statutes § 4-176(a) provides: "Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency."
The plaintiffs argue that the WPCA denied the plaintiffs' permit pursuant to § 7-246 and that the DEP may not issue decisions on issues regarding municipal powers. The plaintiffs cite to the DEP's Rules of Practice and contend that the declaratory relief suggested by the defendants is only permissible if it involves "a statute, regulation or final decision of the [DEP]" and, therefore, does not apply. (Plaintiffs' Memorandum, p. 13.) The plaintiffs further assert that Practice Book § 17-55 provides that declaratory rulings from the Superior Court are preferable to other potentially available remedies and that they are the best mechanism for resolving issues relating to the powers of a municipal agency against claims of ultra vires and preemption.
Practice Book § 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met:
"(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
"(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
"(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
"Section 4-176(a) provides that `[a]ny person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.'" Housing Authority v. Papandrea, supra, 222 Conn. 421. "Under General Statutes § 4-166(3), final decision means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration." (Internal quotation marks omitted.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 418, 661 A.2d 1025 (1995). Although "General Statutes § 4-175 (a) . . . sets forth the circumstances under which a party aggrieved by a provision of the general statutes, a regulation or a final decision of an agency may directly seek a declaratory judgment in the Superior Court"; Housing Authority v. Papandrea, supra, 222 Conn. 421; this statute does not apply to the plaintiffs because they have failed to request a declaratory ruling from the DEP. "The appealability of an agency decision is governed by § 4-183(a)." Derwin v. State Employees Retirement Commission, supra, 234 Conn. 418. The exhaustion doctrine requires that the procedures in § 4-176(a) be exhausted prior to a plaintiff bringing a petition before the Superior Court if there is in place a mechanism for adequate judicial review. Housing Authority v. Papandrea, supra, 222 Conn. 421-22 n. 6, 432-33; see also Polymer Resources Ltd. v. Keeney, supra, 227 Conn. 558; Haddam v. LaPoint, 42 Conn. App. 631, 640, 680 A.2d 1010 (1996).
General Statutes § 4-175(a) provides: "If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action."
See footnote 12 of this memorandum.
Although the plaintiffs argue that Practice Book § 17-55 provides that a declaratory ruling is preferable over other potential remedies, the plaintiffs concede that" [a] declaratory judgment may not be used to circumvent an available administrative remedy." (Plaintiffs' Memorandum, p. 6.) Under the circumstances, § 4-176 provides an adequate remedy for the plaintiffs, who are contesting a final decision made on a matter within the jurisdiction of an agency, i.e., whether the WPCA could deny the plaintiffs' permit to connect to the Simsbury sewerage system based on the existence of fifty-five homes within the sewerage system area that would have on-site septic systems. The DEP is the appropriate body to determine whether the actions of the WPCA were within its authority. See Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 557. The plaintiffs should have sought a declaratory ruling pursuant to § 4-176 from the DEP to determine whether the WPCA had jurisdiction to require that residential homes constructed in Simsbury's sewer service area be connected to Simsbury's sewers. By not doing so, the plaintiffs have failed to exhaust their administrative remedies.
The court notes that the plaintiffs only must comply with either the administrative procedure in § 22a-436 or § 4-176 in order to exhaust their administrative remedies. The court need not determine which is the more appropriate course for the plaintiffs to pursue.
II
Although the court holds for the reasons discussed in Part I of this opinion that the plaintiffs have failed to exhaust their available administrative remedies pursuant to § 22a-436 and § 4-176, and that this basis alone is sufficient to dismiss the plaintiffs' complaint, the court nevertheless will briefly address the remaining arguments of the parties.
A
The defendants additionally argue that the plaintiffs failed to allege that they will suffer substantial harm if they are required to exhaust their administrative remedies and, therefore, do not fall within any exceptions to the exhaustion doctrine. The plaintiffs argue that this issue should properly be brought in a motion to strike, rather than in a motion to dismiss. The plaintiffs also argue that even if they brought the case before the DEP for a declaratory ruling, the plaintiffs would still have to seek relief from the courts because the DEP could not rule on the issue of preemption or issue an injunction against the WPCA's future interference.
"Like all other judicial doctrines, there are exception~ to the rule of exhaustion; however, we have recognized such exceptions only infrequently and only for narrowly defined purposes." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 628. "Such exceptions include where the available remedy is inadequate or futile . . . or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed." (Citation omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, supra, 232 Conn. 426. "An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 628. Additional exceptions to the exhaustion doctrine include instances in which "the procedures followed by the administrative agency are constitutionally infirm . . . or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Citation omitted.) Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 561.
The plaintiffs do not fall within any exceptions to the exhaustion doctrine. The DEP has the authority to interpret the powers of the WPCA through either § 22a-430(f) or a declaratory ruling under § 4-176. Furthermore, "a claim for injunctive relief does not negate the requirement that the complaining party exhaust administrative remedies"; Housing Authority v. Papandrea, supra, 222 Conn. 424; and, therefore, the plaintiff's argument that the DEP cannot provide the appropriate relief is without merit. Because the exhaustion doctrine implicates the court's subject matter jurisdiction; Polymer Resources, Ltd. v. Keeny, supra, 227 Conn. 557; the plaintiffs' argument that the issue of whether they must exhaust their administrative remedies should be brought in a motion to strike rather than in a motion to dismiss is without merit.
B
The defendants finally argue that the plaintiffs' failure to exhaust their administrative remedies available pursuant to General Statutes § 7-250, § 7-255 and § 7-257 also requires that the court dismiss the present action. The court agrees with the plaintiffs that these statutes are facially inapplicable to the facts of this case.
General Statutes § 7-250 provides in part: "Any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and such appeal shall be privileged in respect to its assignment for trial."
General Statutes § 7-255 provides in part: "Any person aggrieved by any charge for connection with or for the use of a sewerage system may appeal to the superior court for the judicial district wherein the municipality is located and shall bring any such appeal to a return day of said court not less than twelve or more than thirty days after service thereof."
General Statutes § 7-257 provides in part: "The water pollution control authority may order the owner of any building to which a sewerage system is available to connect such building with the system. . . . Any owner aggrieved by such an order may, within twenty-one days, appeal to the superior court for the judicial district wherein the municipality is located."
Section 7-250 provides an aggrieved party with the right to appeal an assessment rendered by the WPCA. This section is inapplicable to the present case because the defendants denied sewer access to the plaintiffs and did not impose a sewer assessment.
Section 7-255(a) is specific in providing for an appeal to the Superior Court from the imposition of charges for connecting a building to a municipal sewer system. "General Statutes § 7-255 provides that a water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage. The statute makes the owners of a property liable for the payment of the use charge levied." (Internal quotation marks omitted.) Kaye v. West Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. 382061 (April 18, 1997, Hodgson, J.). In the present case, the WPCA never imposed a connection charge because it denied the plaintiffs' application to connect the homes proposed by the Meadowood plan to Simsbury's sewer system. Thus, section 7-255 is inapplicable to the present case because the plaintiffs have not been charged for connecting to a sewer system.
Lastly, the defendants argue that the right to appeal a decision to deny connection to the sewer system is implicitly included in t e right to appeal an order to connect and, therefore, the plaintiffs failure to appeal this decision amounts to the plaintiffs' failure to exhaust an administrative remedy pursuant to § 7-257. The court agrees, however, with the plaintiffs that § 7-257 is inapplicable to the facts of this case. The WPCA did not issue an order to the plaintiffs to connect to the sewer system but rather denied them permission to install on-site septic systems in the sewer district and, as the plaintiffs allege, failed to act on the request to connect the 269 homes to the public sewer system. The court disagrees that the statutory language § 7-257 clearly referring to an "order . . . to connect" can be stretched to encompass the precise actions of the WPCA alleged in this case regarding the on-site septic systems. For this reason, the defendants' argument that the plaintiffs were obligated to follow the appellate remedy prescribed by § 7-257 is without merit.
CONCLUSION
Based on the foregoing, since the plaintiffs have failed to exhaust their administrative remedies and do not fall within any of the exceptions to the exhaustion of remedies doctrine, the court lacks subject matter jurisdiction. The defendants' motion to dismiss the plaintiffs' complaint is hereby granted.
Peck, J.