Opinion
No. KNL CV 084009141
August 11, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 104)
FACTS
In this action the plaintiff, Thomas E. Sanders, appeals a decision by the defendant, the Town of Montville Inland Wetlands and Watercourses Commission. The defendant determined that driveway maintenance performed by the plaintiff was not an activity permitted as of right pursuant to General Statutes § 22a-40(a)(4) and § 4.1(d) of the Montville Inland Wetlands and Watercourses Regulations.
The Commission is one of four named defendants in this action. The Commission alone has filed this motion to dismiss; accordingly, the Commission will be referred to singularly as "the defendant" hereinafter.
The plaintiff alleges the following facts in his appeal.
The plaintiff owns a residential property, a portion of which is located in an upland review area adjacent to an isolated pocket of wetlands. The portion of the plaintiff's property that abuts the wetlands pocket is a common driveway, which grants access to the plaintiff's property as well as the property of others. The common driveway is predominantly paved with concrete, however, the westerly end of the driveway is constructed with compacted earth products.
Prior to May 5, 2008, the plaintiff applied a crushed aggregate base material to the unpaved portion of the driveway, which provides access to the plaintiff's property. The plaintiff applied the material to alleviate potholes and uneven conditions in the surface. On May 5, 2008, the defendant issued a cease and desist order, which ordered the plaintiff to cease depositing material within a regulated area and scheduled a show cause hearing on May 15, 2008. The plaintiff was ordered to appear at the hearing to show cause why the cease and desist order should not remain in effect.
The plaintiff appeared before the defendant and maintained that the driveway repair work did not require a permit from the defendant, but rather was an activity permitted as of right pursuant to § 22a-40(a)(4). The defendant received evidence concerning the plaintiff's use of the regulated area and, on November 20, 2008, determined that the plaintiff's top dressing and maintenance of the common driveway was not an activity permitted as of right. Notice of the decision was published on December 1, 2008.
Section 22a-40(a) provides, in relevant part: "The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (4) Uses incidental to the enjoyment and maintenance of residential property . . . Such incidental uses shall include maintenance of existing structures and landscaping but shall not include removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse . . ."
The plaintiff subsequently filed this appeal, and on March 16, 2010, the defendant filed this motion to dismiss and a memorandum in support. On April 5, 2010, the plaintiff filed an objection to the motion and a memorandum in opposition. In both pleadings, the parties discuss an application for a permit that the plaintiff filed after the defendant's November 20, 2008 decision. The parties agree that the plaintiff applied for a permit on December 8, 2008, which related to the activities at issue in the defendant's November 20, 2008 decision. The permit was granted by the defendant on April 16, 2009.
The defendants have filed certified copies of the April 16, 2009 decision of defendant to grant the wetlands permit and the legal notice of decision. The decision authorizes the plaintiff to conduct work on the property in accordance with a plan titled "Plan Showing Limits of Driveway Maintenance within Upland Review Area Property of an Easement Appurtenant to Thomas E. Sanders 87E Cottage Road, Oakdale, CT . . ." The plaintiff agreed to the submission of these documents.
LAW OF MOTION TO DISMISS
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "[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).
DISCUSSION
The defendant moves to dismiss the plaintiff's appeal on the ground that the court lacks subject matter jurisdiction because the appeal is moot. The defendant argues that the appeal concerns a decision in which the defendant required the plaintiff to submit an application for activities conducted on his property. The defendant asserts that the plaintiff subsequently submitted an application, thereby making the issue in this appeal moot.
In response, the plaintiff argues that he timely appealed the adverse determination of the defendant and that the appeal is not rendered moot by the after-the-fact permit granted by the defendant. The plaintiff argues that his driveway will require maintenance on an ongoing basis, which entitles him to a determination of whether he has a right to perform the maintenance without having to apply for and receive permits. Additionally, the plaintiff argues that the issues presented in the appeal qualify for the "capable of repetition, yet evading review" exception to the mootness doctrine.
I
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). "The principles that underlie justiciability are well established. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 86.
"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals of Wallingford, 71 Conn.App. 43, 46, 800 A.2d 641 (2002).
In Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982), the Connecticut Supreme Court addressed the issue of mootness with respect to a permanent injunction. The trial court granted the injunction against the defendants, prohibiting them from picketing near the plaintiff hospital's emergency room entrance and driveway. Id., 249. The plaintiff hospital appealed from the trial court's denial of an injunction against picketing at all of its entrances and the defendants cross appealed from the trial court's granting of the injunction with respect to the emergency room entrance. Id. Subsequently, the picketing ended. Id.
In determining that the appeal was moot, the Connecticut Supreme Court reasoned that "[i]n this case, the situation that existed at the time of trial upon which the trial court ordered the injunctive relief no longer exists . . . The law recognizes that the actions of parties themselves, by settling their differences, can cause a case to become moot . . . Any decision on the merits by this court would validate or invalidate an injunction the basis for which no longer exists . . . The United States Supreme Court has aptly stated: `This Court will not proceed to a determination when its judgment would be wholly ineffectual for want of a subject matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this court uniformly has declined to entertain.' . . . The question is purely academic, and this court is not required to pass upon such questions. Courts will not knowingly determine moot questions, however much both parties desire such determination." (Citations omitted; internal quotation marks omitted.) Id., 251-52.
In the present case, the actions of the parties have caused this case to become moot. The plaintiff appeals from the decision of the defendant "that the [p]laintiff's top dressing and maintenance of the common driveway was not an activity permitted as of right pursuant to Connecticut General Statutes § 22a-40(a)(4) and § 4.1(d) of the Montville Inland Wetlands and Watercourses Regulations." Appeal ¶ 10. In his prayer for relief, the plaintiff requests "[t]hat the [p]laintiff's appeal be sustained, vacating and/or reversing the action of the [d]efendant . . ." as well as costs, attorneys fees and "[a]ll other relief" that the court deems appropriate. If the court were to sustain the plaintiff's appeal, the practical relief would be to allow the plaintiff to complete the driveway maintenance, which he may already complete pursuant to the permit he applied for. If the court were to find against the plaintiff, the result would be that the plaintiff would need to apply for a permit to complete the work, which he has already done. The issue of whether the work may be completed as a matter of right is a purely academic question; the plaintiff may complete the work pursuant to the permit regardless of whether he has a statutory right to do so.
II
Nevertheless, an otherwise moot question may be considered by the court if it falls within the "capable of repetition, yet evading review" exception to the doctrine. New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 507, 970 A.2d 578 (2009). "To qualify for review under that exception, an otherwise moot question must meet three requirements . . . First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Citation omitted; internal quotation marks omitted.) Id.
With respect to the first element, the defendant argues that the challenged action is not of such limited duration that the majority of cases would become moot before appellate litigation could be concluded. The defendant cites appellate cases where "alleged `as of right' uses have been litigated to conclusion." Memorandum of Law in Support of Motion to Dismiss, p. 7. The plaintiff asserts that the underlying issue in this case is the ability of a wetlands commission to regulate in a show cause proceeding. The plaintiff argues that in cases such as this one, where the plaintiff subsequently applies for a permit, there is a substantial likelihood that a permit proceeding will conclude before the underlying issues are resolved. The plaintiff's arguments are unpersuasive.
The nature of this action is whether the defendant correctly determined that the plaintiff could not perform driveway maintenance as a matter of right, pursuant to § 22a-40. Numerous Superior Court and appellate cases have considered whether activities are permitted as a matter of right under § 22a-40. See, e.g., Conservation Commission v. Price, 193 Conn. 414, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981); Hancock v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4012848 (May 12, 2010, Tierney, J.T.R.); Washington Inland Wetlands v. Brown, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003980 (December 21, 2009, Ginocchio, J.); Kawczak v. Conservation Commission of Enfield, Superior Court, judicial district of Hartford, Docket No. CV 000596947 (July 30, 2001, Maloney, J.); Lewis v. Clinton Inland Wetland Conservation Commission, Superior Court, judicial district of Middlesex, Docket No. CV 97 0082443 (January 5, 1999, Schuman, J.). This case has become moot because the action of the plaintiff, by applying for a permit, changed the condition of affairs between the parties. Had the plaintiff not applied for the permit, the nature of this case would not be one of limited duration and the litigation could have proceeded on the merits. This case does not meet the criteria for the first requirement of the "capable of repetition, yet evading review" exception, as such, this appeal must be dismissed as moot.
CONCLUSION
Based on the foregoing, the defendant's motion to dismiss is granted.