Opinion
No. CV04-0487261-S
October 29, 2004
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff property owners, the Weissbergs, filed an appeal in two counts against a neighbor, Peggy Evans and Dennis Johnson who is director of the Guilford Health Department (GHD). The defendant Evans has filed a motion to dismiss. The court will refer to the complaint to define the nature of the claims made. The first count is defined as an "appeal per General Statutes § 4-183." The second count is a "petition for declaration of rights per General Statutes § 4-175." The factual background to both counts is set forth in the first count. There it is alleged that on May 15, 2003 Evans presented a plan for a new subsurface sewage disposal system on her property in connection with a site plan to construct a new three bedroom home. The complaint then goes on to allege that Johnson was told there was pending litigation regarding the eastern boundary of the Weissberg property and the Evans property. It is then claimed that on September 3, 2003 the GHD told the plaintiffs a septic permit would not issue because of the uncertainty of the boundary which would affect the separation distance for the septic system required under the Public Health Code. Paragraph 8 goes on to state that on December 11, 2003 the defendant GHD contacted plaintiff's counsel to tell him a letter and affidavit had been received from Evans regarding the boundary dispute "and GHD requested plaintiffs' response within seven days." Paragraph 9 goes on to state:
9. The defendant GHD's December 11, 2003 correspondence commenced a contested case or administrative proceeding seeking an administrative process under the Administrative Procedure Act.
On December 17th the plaintiffs requested additional time to respond and "would be filing a petition to intervene pursuant to General Statutes § 22-19a." The next day plaintiffs contacted the defendant GHD raising due process concerns over the Evan's letter and affidavit which "was replete with hearsay evidence" and they also wanted to know which survey of Rusell Waldo P.E L.S. was referred to in the Evan's submission. On the same day a preliminary Petition for Intervention was filed with the GHD "claiming that the proposed septic system had a reasonable likelihood of causing environmental harm" (par. 12). Paragraph 13 goes on to say that on December 29, 2003 the GHD denied the plaintiff's preliminary intervention and determined that the proposed septic system complied with the health code's design standards based on the Waldo survey.
It is then claimed that the GHD decision was unreasonable, arbitrary, illegal, and an abuse of discretion because
(1) it was based on evidence the plaintiffs had no opportunity to review or respond to in violation of their substantive and procedural rights to due process
(2) it was based on prejudicial statements and hearsay from the defendant
(3) the December 29 decision was based on a procedure unlawful under § 4-183 et seq. and in violation of due process because after inviting plaintiffs to comment they were not given a chance to do so, no hearing was held and the decision was based on ex parte communications from Evans
(4) the plaintiffs were not given time to respond to the Evan's letter and affidavit and were not permitted to supplement their petition to intervene
Paragraph 15 alleges that the plaintiffs are aggrieved because they were denied intervenor status and because they were denied due process and Administrative Procedure rights in a situation where they have substantial legal rights and interests that will be adversely affected by the proposed new septic system.
The second count states that December 18, 2003 correspondence to the GHD constituted, pursuant to § 4-176 CGSA, a petition for a declaratory ruling challenging the validity of any proposed approval of the proposed septic system. Paragraph 17 then catalogues the errors Johnson made in approving the system — it violates the Public Health Code, approval of the Department of Environmental Protection was not sought although the proposed system is within 100 feet of Long Island Sound, the proposal is too large for the site and "has the potential to hydraulically overload the plaintiffs' system." The final paragraph argues that there is a substantial question in dispute between the parties and substantial uncertainty as to their legal relationship as the alleged facts indicate.
The defendant Evans filed a motion to dismiss to both counts of the complaint. She basically argues that absent a statutory grant there is no right to appeal the decision Mr. Johnson made. Also it is argued that the Uniform Administrative Procedure Act (§§ 4-166 et seq.) applies only by and under its terms. Thus neither Johnson nor the GHD are an "agency" under subsection (1) of § 4-166 and under subsection (2) the issuance of a septic system permit is not a "contested" case. Also it is argued that there was no "final decision" as defined in subsection (3) of § 4-166. Thus, it is argued that there is no appeal right to this court under § 4-183. Finally it is stated that the plaintiffs lack standing under § 22a-19 of the General Statutes.
I (a)
The first count is based on an alleged right to appeal under § 4-183 of the Uniform Administrative Appeal Act (UAPA) (§§ 4-166 et seq.). The language of § 4-183 becomes important in this court's decision as to whether it has jurisdiction to hear this appeal. It reads as follows:
(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.
The language used in this section necessarily refers to the definition statute (§ 4-166) of the UAPA which defines "agency" as follows in subsection (1)
(1) "Agency" means each state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the General Assembly, the courts, the Council on Probate Judicial Conduct, the Governor, Lieutenant Governor or Attorney General, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181;
and defines "final decision" in subsection (3)
(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. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration;
but given the definition of "final decision" in subsection (3) we must also look to the definition of "contested case" in subsection (2)
(2) "Contested case" means a proceeding, including but not restricted 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 hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168.
Simply put if Mr. Johnson cannot be defined as an "agency" under § 4-166(1) or cannot be said to have made a "final decision" as defined in subsection (3) there is no right to appeal under § 4-183.
In Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525 (1990) the court referred to an earlier Appellate Court case to define the term "agency."
An administrative agency within the meaning of the UAPA has been defined as "a body in which the legislature has reposed general powers of administration of a particular state program in connection with which it has been given statutory authority to act for the state in the implementation of that program." Catholic Family Community Services v. Commission on Human Rights and Opportunities, 3 Conn. App. 464, 467 . . . (1985).
The director of a local health department such as Mr. Johnson would seem to fall within the definition of an "agency." Section 19a-200 defines the qualifications of such a director of health despite what is contained in any local charter provisions. Such an officer can only be removed with the approval of the State Public Health Commissioner. Section 19a-200 defines a director's duties as follows:
Such (local) director of health shall have and exercise within the limits of the city, town, or borough for which he (she) is appointed all powers necessary for, enforcing the General Statutes, provisions of the Public Health Code relating to the preservation and improvement of the public health and preventing the spread of diseases therein.
The promulgation of the Public Health Code is a duty imposed by state statute on the Commissioner of Public Health pursuant to § 19a-36. Section 19a-206 defines the civil penalty actions the local health director may bring with set fines spelled out and also discusses the ambit of injunctive relief again all pursuant to state statute. Section 19a-207 says local governments can adopt by ordinance sanitary rules and regulations "but no such rule or regulation shall be inconsistent with the Public Health Code." The state in § 19a-202 even sets up a financial scheme to provide funding for municipalities with a public health department as long as a local public health director is appointed and a public health program is prepared which must be approved by the State Commissioner of Public Health.
All of this established a very different factual and statutory pattern from that which existed in Brian Edwards et al. v. Code Enforcement Committee of the Town of Vernon, 13 Conn.App. 1 (1987) where the court found the committee was not an "agency" under the UAPA, § 4-183. The court noted that in reference to state statutes governing building codes: "The defendant agency does not obtain any of its powers and duties from them. They merely set a state standard for the uniform enforcement of the municipal powers pertaining to the regulation of the police, building and health and safety functions of municipal government by agencies other than the defendant. As supplements to the housing ordinance they fill a void that may exist in the local code, the term 'supplement' means 'to fill up or supply by additions, add something to fill the deficiencies of . . .'" id. page 8.
All of this is not what we have here with a local health director; as the earlier discussion indicates the scope of his or her activities is closely defined and regulated by state statute and the state Public Health Commissioner as are his or her very qualifications and removal procedure.
The court concludes a local health director meets the definition of "Agency" under § 4-166(1) of the UAPA.
(b)
Despite the foregoing conclusion, however, an appeal will not lie under the UAPA, (§ 4-183) because the plaintiffs have not been aggrieved by a final decision of the "agency" a predicate for appeal under § 4-183. There is no "final decision" because by definition in subsection (3) of § 4-166 a "final decision" means an agency determination in a "contested case." A "contested case" under subsection (2) is a proceeding "after an opportunity for a hearing or in which a hearing has in fact been held." There is nothing in the statutes governing Municipal Health Authorities, Chapter 368e, §§ 19a-200 et seq. which provides for a hearing procedure or an opportunity for one prior to a local public health director's decision to issue an order. A cursory reading of the chapter indicates that in certain authorized spheres of activity "orders" must be issued by local health directors which are necessary to protect the public safety and, unlike the decision by Mr. Johnson in this case, are prohibitive in nature. Hearings before such orders are issued could endanger the public and that is why the statutory scheme speaks in terms of "orders" without any specific reference to the right to a hearing. The failure to provide for a hearing in all these matters and the possible unfairness that might be presented to parties aggrieved by any such order is averted by § 19a-229 which allows an appeal to the Commissioner of Public Health from an "order" of a local public health director.
In any event for the foregoing reasons the court concludes that the plaintiffs cannot rely on § 4-183 because as a prerequisite to an appeal under that statute there must be a "final decision" to appeal from and there was no such decision here.
(c)
But perhaps a more basic reason for the non-viability of a § 4-183 appeal lies in the fact that under that statute no appeal will lie unless there has been an exhaustion of administrative remedies. This requires an examination of the language of § 19a-229 which states:
(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.
Under this statute an aggrieved party must appeal within forty-eight hours of an order by a local public health official to the Commissioner. At that point the Commissioner is required to immediately look into the merits of the appeal — that is, the justification for issuance of the "order." It appears that a full de novo review is conducted by the Commissioner. In Haddam v. LaPointe, 42 Conn.App. 631 (1996) the court held that: "If a party chooses to challenge an order issued by the director of health, the party must appeal to the (Commissioner of Public Health) pursuant to (General Statutes § 19a-229 and § 19a-241) of the state regulations. A party aggrieved by the agencies decision may then appeal to the Superior Court" pursuant to § 4-183, id. Pp. 634-35.
In effect the court held that the appeal procedure contemplated in § 19a-229 would meet the prerequisites of § 4-183 since the Commissioner's action would, be a "final decision" in a "contested case" — the appeal procedure provides for a hearing.
The § 19a-229 procedure further underlines why the plaintiffs cannot rely on § 4-183 to appeal to the Superior Court. Section 4-183 requires, as a predicate to any right of appeal, an exhaustion of administrative remedies. This the plaintiffs have failed to do, they did not, pursuant to § 19a-229 appeal to the Commissioner. It is not conceivable to the court that in an area of regulation presenting some highly technical questions that a party could go directly to Superior Court after an order by a local health director and side step the expedited mechanism set up by the legislature in § 19a-229 which would enable the State Health Commissioner to resolve and hopefully provide uniform rulings in the context of a situation where local officials could be deciding particular issues one way or another.
Administrative agencies have been established in the state and federal level so that they could develop expertise in a particular area subject to regulation. In so doing they may be in a better position than general courts of law to decide matters lying within their areas of expertise. The doctrine encourages orderly procedural ways of handling sometimes complex problems and relieves the courts of the burden of deciding matters entrusted to an agency with expertise and rules of procedure that may permit a more expeditious mechanism than that provided by the courts to handle these matters.
Enforcing the doctrine allows a court that later has to review the agency's decision the chance to benefit from the agency's findings, McKart v. United States, 395 U.S. 185, 194 (1969), Cannata v. Department of Environmental Protection, 215 Conn. 616, 624-25 (1990).
Thus the statutory scheme set up in §§ 19a-200 et seq. contemplates the final agency decision from which an appeal to the courts will lie only is embodied in the Commissioner's ruling issued as a result of an appeal under § 19a-229. That is why a "hearing" before the local health director is not provided, and why any decision by that official cannot be final — the agency expertise by statutory policy is promulgated at a higher level within the agency, i.e., the Commissioner. Also as Judge Teller pointed out in Pinchbeck v. Connecticut Department of Public Health, (J.D. Hartford, 25 Conn. L. Rptr. 477, 1999 Ct.Sup. 13171) to allow an appeal though § 4-183 procedure in a case such as this "would mean that a person who ignores the available administrative remedies could have the Superior Court act as an administrative fact finder in the first instance, whereas a person who exhausts the administrative remedies, to no avail, would be entitled in the Superior Court to only a deferential record review of the agency's actions," quoting from Haddam v. LaPointe, 42 Conn.App. at page 638.
(d)
The foregoing interpretation of the statutory scheme, at least in the court's opinion, disposes of other positions taken by the plaintiffs. The plaintiffs argue that Mr. Johnson offered the plaintiffs an "opportunity for a hearing" which, if so, would be one factor supporting their view that the matter before Johnson was a "contested case," see § 4-166(2) and Herman v. Division of Special Revenue, 193 Conn. 379, 383 (1984). The December 11, 2003 letter would require a strained reading to allow it to be characterized as an "opportunity for a hearing." Johnson was merely inviting the plaintiffs to offer their concerns or comments concerning information he had received from the applicants. "Hearing" is a word of art in the administrative law area and the third edition of Black's Law Dictionary defines it as follows: "The presentation of a case or defense before an administrative agency, with opportunity to introduce evidence in chief and on rebuttal and to cross-examine witnesses as may be required for a full and true disclosure of the facts. 2 Am.Jur.2d, Admin. Law § 397. This letter did not offer such a hearing.
Furthermore, given the statutory scheme the language of the Appellate Court, as the, defendant points out, is controlling. In East Hampton v. Department of Public Health, 80 Conn.App. 248, 258-59 (2003) the court said: "Stated differently, even if a proceeding was in fact held it lacked the essential element of a right to be heard and thus remained gratuitous and did not qualify as a 'statutorily required hearing.' As a result, there could not have been a contested case to which the provisions of the UAPA might apply. Accordingly the court had no jurisdiction to entertain the plaintiff's appeal and the dismissal was, proper," cf. New England Dairies v. Commissioner of Agriculture, 221 Conn. 422, 427 (1992). In other words a local health officer, acting on his or her own whim cannot by holding a hearing or offering an opportunity to do so cannot turn the statutory scheme regulating Municipal Health Authorities (§§ 19a-200 et seq.) on its head by in effect allowing a bypass of the immediate review of his or her decisions under § 19a-229 and thus sanctioning a § 4-183 appeal in complete disregard of the purposes behind the exhaustion of administrative remedies doctrine.
The plaintiffs also argue that a Johnson letter "initiate(d) a proceeding to reconsider" the Guilford Public Health Department's refusal to issue a septic permit. The aim of this argument is to fit what occurred into subsection c of § 4-166(3) which as one definition of "final decision" says it can be "an agency decision made after reconsideration." Armed with a "final decision" then it would follow a § 4-183 appeal would lie. Leaving factual disputes aside as to whether any reconsideration was made here this position again does not make any sense in the statutory scheme. In other words a local health officer can issue an order without a hearing which is not statutorily required and this would not allow a § 4-183 appeal or as just discussed in fact hold a hearing or offer the opportunity to hold one and an appeal will not lie under the statute, but if he reconsiders a decision previously made somehow the right to a § 4-183 appeal is triggered. The way out of this impasse is to adopt the defendant's position, which the court does, to the effect that "reconsideration" has a special meaning under the UAPA. Section 4-181a says a party in a contested case may within 15 days after mailing of the final decision file a petition for reconsideration. But there was no "final decision" nor was there a "contested case" as previously discussed.
Also in one of their briefs the plaintiffs claim "their due process rights were abridged by inviting their participation and then summarily terminating their involvement." The court assumes a procedural due process claim is being made. Even if the facts alleged are accepted as established it is hard to find a due process violation in a statutory scheme which provides that a local public health official's order may be appealed to a state commissioner under § 19a-229 who then is authorized to examine the merits of any decision by the local official and can then, on an apparently de novo basis, vacate or modify the order if he so chooses. The Commissioner's ability to look into the "merits" would suggest that the Commissioner can take new evidence from any party appealing or consider new evidence on his or her own. The party appealing to the Commissioner, if unsatisfied with the decision, can then appeal to the Superior Court, see Haddam v. LaPointe, supra.
Finally, the plaintiffs argue that the exhaustion argument does not apply because as neighbors they have no right to appeal to the Commissioner of Public Health. They argue that Judge Teller adopted this view in the Pinchbeck case. Pinchbeck does not hold that; the plaintiff was a neighbor to the applicant who had submitted an application for a subsurface sewage disposal system. Declaratory relief was sought under §§ 4-175, and 4-176. In rejecting the plaintiff's right to do so the trial court explicitly said the plaintiff had a remedy of appeal to the Commissioner of Public Health under § 19a-229 and from any decision by the Commissioner to the Superior Court. Section 19a-229 explicitly says if aggrieved, "any person" can appeal to the Commissioner — not just a party who has made an application to the public health officer — "any person." If Section 19a-229 were so limited problems would be presented under the state and federal constitutions. The statute should not be so interpreted and allowing a "neighbor" to appeal under § 19a-229 would have the added advantage of preserving the previously discussed benefits secured by the exhaustion of administrative remedies requirement envisaged by § 19a-229 along with the right of an appeal to the courts.
In any event for the foregoing reasons an appeal may not be taken pursuant to § 4-183 and the first count is dismissed.
II
In the second count it is alleged that pursuant to § 4-176(a) of the General Statutes a letter from the plaintiffs to Mr. Johnson "constituted a petition for declaratory judgment challenging the validity of any proposed approval of the on-site sewage disposal system of the co-defendant Evans (par. 16). The following is then alleged
"17. The defendant GHD, by and through its agents, has erred in approving the codefendant's on-site sewage disposal system for 68 Prospect Avenue, Guilford, Connecticut, because said proposal violates the Public Health Code, approves a system within 100 feet of the Long Island Sound without approval of the Department of Environmental Protection, and said proposal is too large a system for the site and has the potential to hydraulically overload the plaintiffs' system.
18. There is an actual and bona fide substantial question in dispute between the parties and a substantial uncertainty as to their legal relationship growing out of the facts hereinbefore stated."
In order to analyze what is being alleged in this complaint it is necessary to first examine the wording of § 4-175(a).
That statute reads as follows:
Sec. 4-175. Declaratory judgment action to determine validity of a regulation or applicability of a statute, regulation or final decision. (a) 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 (1) 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.
A predicate to a declaratory judgment action requires compliance with § 4-176(a) which states
Sec. 4-176. Declaratory rulings. Petitions. Regulations.
(a) 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.
(a)
The plaintiffs rely on a December 18, 2003 letter from their counsel to Mr. Johnson as the "petition" referred to in § 4-176(a). The court has read this letter and nowhere does it request "a ruling as to the validity of any regulation" or address the applicability to specified circumstances of a provision of the General Statutes, a regulation or final decision on a matter within the jurisdiction of the agency." The letter does not mention any statute or regulation or the issue of the applicability of either to the matter to be decided by Johnson. It does not explicitly request any "declaratory ruling." The letter basically reads as an invitation to further discussion and at one point indicates "I hope (what is being communicated in the letter) will be useful to you as you decide whether or not to grant this permit."
(b)
Furthermore, the court has decided Mr. Johnson is an "agency." Even if the court is correct it has serious doubts whether a petition could be addressed to this local health director for a declaratory ruling. An "agency" to whom such a petition is addressed must be asked to decide the issue raised "on a matter within the jurisdiction of the agency" under § 4-176 subsection (d). Section 19-206 which defines the duties of a local public health official nowhere includes any power to issue declaratory rulings.
(c)
Also § 4-175(a) explicitly says a declaratory judgment action only lies when "a provision of the General Statutes, a regulation, or a final decision or its threatened application" interferes with or impairs, etc. a plaintiff's rights. There is no claim in the pleadings that any statute or regulation impairs or interferes with the plaintiffs' rights nor is there a "final decision." Even if an appropriate request had been made for a declaratory ruling under § 4-176(a), a refusal to issue one cannot qualify as a "final decision" for § 4-175(a) purposes — if mere refusal was enough the legislature would not have used the "final decision" language which is defined in § 4-166(3).
(d)
There are more compelling reasons perhaps to dismiss this declaratory judgment count than can be provided by the foregoing linguistic analysis. In one of their briefs the plaintiffs refer to the December 18, 2003 letter their counsel sent to Mr. Johnson and characterize it as "a petition for a declaratory ruling challenging the validity of any proposed approval" of the new septic system. That approval having been given, the plaintiffs now seek to secure a declaratory judgment seeking relief they could have obtained by an appeal of the Johnson order to the Commissioner of Public Health which could then have been followed by an appeal to Superior Court. The relief requested in their complaint underlines the fact that what is sought here is an appeal despite their failure to resort to § 19a-229.
The general law in this area is set forth in 22 Am.Jur.2d, Declaratory Judgments, § 84, page 675.
Declaratory judgments generally may not be used as a substitute for the review of decisions of boards or administrative officials exercising judicial or quasi-judicial powers. A determination by an administrative agency which is essentially judicial in nature is appealable and may not be subject to review in an action for a declaratory judgment, though an agency's rule-making or quasi-legislative functions may be tested in a declaratory judgment action.
In Hartford Electric Light Company v. Water Resources Commission, 162 Conn. 89, 105 (1971) the court said
To allow a review of the sufficiency vel non of the evidence on which the administrative board acted would be to utilize the declaratory judgment action as an appellate review, and the declaratory judgment action should not be so employed . . . It is fundamental that this type of proceeding [declaratory judgment action] cannot be used as a substitute for an appeal . . . While one may use the declaratory judgment procedure to interpret or determine the meaning of an administrative order, it cannot be used to review the question whether the administrative agency acted correctly or erroneously in rendering its order. Mitchell v. Hammond, supra. "[R]arely, if ever, could any court, by way of a declaratory judgment, determine that an administrative officer should exercise his discretion in a given manner.
Also see Tucker v. Board of Education, 190 Conn. 748, 754 (1983), Honis v. Cohen, 18 Conn.App. 80, 84 (1989), cf. P.B. § 17-55 subsection 3.
Perhaps even more to the point even apart from all of the foregoing considerations it is also true that a party must exhaust his or her administrative remedies as a requisite to bringing a declaratory judgment action. O G Industries Inc. v. Planning Zoning Commission, 232 Conn. 419, 426 et seq. (1995).
Our court's view is in accord with the general law in this area, see 22 Am.Jur.2d Declaratory Judgments § 83, pp. 674-75.
To secure declaratory relief in a case involving administrative action the plaintiff may be required to show that the available administrative remedies have been exhausted. The courts are loath to interfere prematurely with administrative proceedings and thus will not, as a rule, assume jurisdiction of declaratory judgment actions until administrative remedies have been exhausted except where an administrative remedy is not adequate.
Here as noted, perhaps too many times, the plaintiffs could have appealed to the Commissioner under § 19a-229 and from thence to Superior Court with the latter entity on appeal having access to a fully developed record in a technical area by officials with statewide expertise.
Nor can the court find that the § 19a-229 remedy would have been inadequate or futile here. The Evans application process had been going on several months prior to Johnson's order. They did have some input to Mr. Johnson and under § 19a-229 upon appeal the Commissioner apparently conducts a de novo hearing as a result of which he or she can vacate or modify any order of a local health official. It has not been suggested why the plaintiffs did not have time to develop their environmental concerns or any other concerns prior to the Johnson order — nothing but an assertion to that effect has been made.
Also if a § 19a-229 appeal had been taken any concerns could have been raised before the Commissioner who had an obligation to look fully into the merits of any local order — no evidence has been offered to the effect, for example, that the practice of the Commissioner on these appeals does not afford aggrieved parties the right to prepare for appellate procedures.
The declaratory judgment count is also dismissed.
III
The court will discuss separately the plaintiffs' reliance on § 22a-19 although, at least to the court, the right that statute gives to intervene to raise environmental concerns is never related directly to how that may translate into insulating either of the two counts from a motion to dismiss.
It could perhaps be argued that if § 22a-19 gave the plaintiffs the right to intervene before Johnson prior to issuing his order the enforcement of that right might give rise to a "contested case" and an ensuing "final decision" from which a § 4-183 appeal could lie. But § 22a-19 only allows intervention in an "administrative, licensing, or other proceeding." It would be a strained interpretation of the word "proceeding" to say that a local official such as Johnson, in any situation where he or she is authorized by state law to issue a license, ruling, or order without the need to hold a hearing, was holding a "proceeding." It certainly would not meet the Black's Law Dictionary definition of a "proceeding" as the defendant points out — a hearing or trial which is adjudicatory and sometimes legislative in nature. To hold otherwise would open almost every administrative act of local bureaucracies to § 22a-19 intervention. Whether or not that is a good or bad idea, the court need not reach. Even if the plaintiffs had the right to intervene before Johnson, Section 22a-19 requires that a "verified petition" be filed for that § 22a-19 intervention. Nizzardo v. State Traffic Commission, 259 Conn. 131, 163 (2002) makes clear that such a petition must be under oath and must contain the "factual basis for the intervention because only facts can be sworn to by affidavit." The petition here was only signed by one plaintiff, not fatal to the court, but it was not under oath and contained no factual assertions. As discussed previously the court has been offered no acceptable reasons why such factual assertions could not have been developed prior to any action by Johnson. Evans filed the application in May 2003. Mr. Weissberg testified he was aware of an initial application by Evans for the new septic system a year or year and a half before the May 17, 2004 date on which he testified and he had lengthy discussions with Johnson which involved Johnson's "technical analysis of what was before him." Johnson testified the Weissbergs came to his office two or two and one half years prior to May 2004. There was no appropriate § 22a-19 intervention before Johnson.
And even if § 22a-19 is broadly read, as it should be given the policy statement regarding protection of the environment in § 22a-1, on a § 19a-229 appeal to the Commissioner from Johnson's decision there could have been intervention in that proceeding raising environmental issues under subsection (a). But an appeal was never taken pursuant to that statute. Therefore even if the petition filed here could be said to pass muster as a § 22a-19 "verified petition" there was a failure to exhaust administrative remedies precluding, as previously discussed, any § 4-183 appeal and also precluding a declaratory judgment action either of which courses of action could have been used as a vehicle for raising environmental concerns. Also whether or not there could have been a § 22a-19 intervention in front of Johnson, the court was offered no reason as to why environmental issues could not have been raised in any direct appeal to the Commissioner of Public Health. In fact under subsection (b) of § 22a-19 such an appeal can be regarded as a "proceeding" under any definition of that term. Besides that subsection mandates that all state agencies have an obligation to care for the environment whether or not the parties even raise such concerns — under such a statutory scheme parties appealing under § 19a-229, one way or another, must be allowed to raise environmental concerns even if they could not be raised by way of intervention before a local public health office.
In any event the appeal is dismissed.
Corradino, J.