Opinion
No. CV 05 4003914.
November 21, 2006.
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiffs, Wellswood Columbia, LLC (Wellswood) and Ronald Jacques, filed a complaint on November 11, 2005, seeking to enjoin the defendants, the town of Hebron, the board of selectmen of the town of Hebron (board), and Paul Mazzaccaro, the town manager for the town of Hebron (town manager), from closing or barricading Wellswood Road in the town of Hebron or otherwise restricting access to Wellswood Road from the town of Columbia or Zola Road in the town of Columbia. In their complaint, the plaintiffs allege the following. The plaintiff Wellswood owns real property in the town of Columbia, a portion of which abuts the town of Hebron. This parcel also abuts Zola Road, which is an unpaved road in Columbia. At the Hebron/Columbia town line, Zola Road continues with the name Wellswood Road. Zola Road provides the only access to the property. The plaintiffs, Wellswood and Jacques, have undertaken to develop a portion of the property for residential use. The plaintiffs received a permit from the Columbia Inlands and Wetlands Commission and have applications pending before the Columbia Planning and Zoning Commission. On October 6, 2005, the board voted to authorize the town manager to close and barricade Wellswood Road on Hebron's border. Without the ability to pass from Zola Road to Wellswood Road, the plaintiffs will be unable to develop the property for any income-producing purpose. Moreover, the board's action to close and barricade Wellswood Road was arbitrary, illegal, capricious and beyond its authority.
Ronald Jacques is the managing member of Wellswood Columbia, LLC.
On February 6, 2006, this court granted the plaintiffs' motion to substitute Jared Clark for Paul Mazzaccaro as the town manager for the town of Hebron. Clark replaced Mazzaccaro as town manager for the town of Hebron after this action was commenced.
On March 15, 2006, the defendants filed a motion to dismiss the complaint claiming that the court lacks subject matter jurisdiction. Specifically, the defendants move to dismiss the complaint on the following grounds: the plaintiffs lack standing; the defendants are immune as a matter of law; and the plaintiffs have failed to exhaust their administrative remedies.
Practice Book § 10-30 states in relevant part: "Any defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." The court notes that the defendants filed an appearance on November 30, 2005, whereas the motion to dismiss was filed in March of 2006. Although the motion was untimely, it challenges the court's subject matter jurisdiction over this case, which may not be waived. See Practice Book § 10-33. Therefore, the court will consider the defendants' motion to dismiss.
As required by Practice Book § 10-31, the defendants have filed a memorandum in support of their motion to dismiss, and the plaintiffs have filed a memorandum in opposition. Thereafter, on July 31, 2006, the parties simultaneously filed supplemental memoranda regarding the applicability of West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 901 A.2d 649 (2006), to the present matter.
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Practice Book § 10-31(a) provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court, sua sponte, at any time." (Emphasis in original; internal quotation marks omitted.) Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 28, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211.
In their memorandum of law in support of the motion to dismiss the defendants argue that the plaintiffs lack standing inasmuch as they are not taxpayers of the town of Hebron and the town does not have a duty to keep the road open for the plaintiffs. The plaintiffs counter that although they are not claiming taxpayer standing, "Connecticut courts have long granted standing to persons seeking equitable relief from government acts that cause such persons injury . . ." (Plaintiffs' memorandum of law in opposition to motion to dismiss, p. 10.) Further, the parties disagree on the application of the case of West Farms Mall, LLC v. West Hartford to the present matter. The plaintiffs assert that the case confirms the application of classical aggrievement analysis in determining standing to challenge municipal actions. The defendants argue that this decision provides no change to the law of standing or aggrievement.
The court notes that although the Connecticut Supreme Court in that case did not decide the plaintiff's claim pertaining to classical aggrievement inasmuch as that claim had been articulated for the first time on appeal; see West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 27-28; it recited the well-settled law in this state regarding the test for proving classical aggrievement, which this court recognizes and adopts herein.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 11.
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 551, 877 A.2d 773 (2005). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 25.
The defendants argue that the court must use the test articulated in Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 427 A.2d 822 (1980), to determine the plaintiffs' standing in this matter. In Alarm Applications, the corporate plaintiff alleged that it and the defendant fire company sold and serviced fire prevention equipment and fire extinguishers, but that the fire company's activities were ultra vires and unauthorized inasmuch as the "fire company [was] a nonprofit corporation that was set up and directed by the fire district, which in turn, [was] limited by the town of Simsbury to the sole public purpose of extinguishing fires." Id., 543-44. Further, the corporate plaintiff alleged that the harm it suffered was that its gross income had been reduced based on this competition. See id., 543. The Connecticut Supreme Court determined that an individual or a private corporation must allege taxpayers' status or other "special legal relationship" in order to challenge "the propriety of the conduct of a municipal corporation." Id., 548. Based on the factual allegations in the complaint and the procedural posture of this case, the court finds that the plaintiff has standing to sue under either test.
In Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982), the Connecticut Supreme Court noted that, generally, a "highway creates two easements: the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits landowners who abut the highway to have access to the highway and to the connecting system of public roads." At common law, the discontinuance of a public highway "extinguished both the public easement of travel and the private easement of access . . ." (Internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 88, 788 A.2d 40 (2003).
General Statutes § 13a-55 altered the common law inasmuch as it retained the private easement of access, thereby allowing abutting landowners to "continue to have an easement of access over the discontinued highway." (Internal quotation marks omitted.) Tighe v. Berlin, supra, 259 Conn. 88. Section 13a-55 provides in relevant part: "Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway . . ." (Emphasis added.) The language of the statute referring to "a highway any portion of which has been discontinued or abandoned" was added through the legislature's passage of Number 85-227 of the 1985 Public Acts. The purpose of this change was to "allow the owner of . . . property which is near but does not directly abut a discontinued or abandoned highway the right of way over such discontinued or abandoned highway to the nearest or most accessible highway." 28 S.Proc., Pt. 7, 1985 Sess., p. 2194, remarks of Senator Michael L. Morano.
Although the court is not aware of any appellate authority that is on point with the present case, our highest court has considered the application of § 13a-55 where the property owned is not located in the town that is being sued. In Ventres v. Farmington, 192 Conn. 663, 663-64, 473 A.2d 1216 (1984), the plaintiff land developer owned land that was "wholly located in Burlington on Taine Mountain, which mountain lies partly in the towns of Burlington and Farmington." The plaintiff sued the town of Farmington, requesting injunctive relief and damages, based on the town erecting barricades over a discontinued road in Farmington. Id., 664. The plaintiff's property abutted a public highway, Taine Mountain Road, which connected "River Road, a public highway in Farmington, to Punch Brook Road, a public highway in Burlington . . ." and was "separated from the Farmington-Burlington town line by other property." Id. "Taine Mountain Road was paved by the defendant from River Road to a point approximately 100 feet from the town line, where a circular cul-de-sac was established. Only a narrow dirt path extended from the cul-de-sac to the town line . . ." Id., 665. It was this strip of land, located between the cul-de-sac in Farmington and the Burlington town line, which the plaintiff attempted to widen and grade. See id., 664. On appeal, the plaintiff claimed, inter alia, "that the discontinuance of the 100 foot strip of land as a highway triggered relief under . . . § 13a-55 . . ." Ventres v. Farmington, supra, 192 Conn. 669. The Connecticut Supreme Court concluded that "[s]ince plaintiff . . . [did] not own property abutting on the discontinued way and still [had] access to the public road system, his claim under § 13a-55 was properly denied." Id., 670. This court notes that the Ventres case was decided before the 1985 amendment of § 13a-55.
In Tighe v. Berlin, supra, 259 Conn. 85, the plaintiffs' property in Middletown abutted Stantack Road, which was an undeveloped road that ran "in a north-south direction, with the northern portion in Berlin, and the southern portion in Middletown." The town of Berlin gated Stantack Road where it intersected with another road, Lamentation Drive, and keys to the gate were given to the plaintiffs and other owners whose land abutted Stantack Road. Id., 86. The plaintiffs argued, inter alia, that the 1990 amendment to § 13a-55, which added the language "for all purposes for which a public highway may be now or hereafter used"; see Public Acts 1990, No. 90-142, § 1; indicated that "the legislature conferred a continuing right of public travel over abandoned stretches of road." Tighe v. Berlin, supra, 259 Conn. 89. The Connecticut Supreme Court concluded that "when the portion of Stantack Road that existed in Berlin was abandoned by the defendant, property owners such as the plaintiffs who own[ed] land abutting Stantack Road continued to have a private right of access over the abandoned portion of" that road; id. 88-89; but that "[t]he amendment was not intended to reintroduce public travel along a road that a town previously has abandoned." Id., 90.
In addition to an easement of access, our Supreme Court has concluded that "[a] landowner who, as a result of governmental action, suffers a total and permanent loss of his right of access to the public way adjacent to his land and to the system of public roads is entitled to recover damages." Luf v. Southbury, supra, 188 Conn. 342.
In the present matter, the plaintiffs allege the following in their complaint. "Wellswood owns real property, a portion of which borders the [t]own of Hebron, in the [t]own of Columbia . . ." (complaint, ¶ 6); and that this property "abuts Zola Road, an unpaved Columbia town road, which road provides the only access to the [p]arcel." (Complaint, ¶ 7.) "At the Hebron town line, Zola Road continues with the name Wellswood Road, a Hebron town road, which roads together constitute the only access to the [p]arcel." (Complaint ¶ 8.) Finally, "[i]f Wellswood Road is closed and [the] barricade is erected by [the town of] Hebron, [the] [p]laintiffs will be deprived of all access to the . . . [p]arcel." (Complaint, ¶ 18.) On October 6, 2005, the board unanimously passed the motion to authorize the "[t]own [m]anager to close Wellswood Road and to install a barricade on the [t]own's border." (Complaint, exhibit A.)
Viewing the facts alleged in the complaint in the light most favorable to the plaintiffs, the court finds that the plaintiffs have standing to maintain this action. Under § 13a-55, the plaintiffs have a private easement of access over Wellswood Road. In addition, based on the allegations in the complaint it is the town of Hebron that has impeded this access and effectively landlocked the plaintiffs' property. Based on these facts, the plaintiffs have alleged facts sufficient for the court to find that the plaintiffs have a specific, personal and legal interest in the attempt to barricade and close Wellswood Road and that this interest has been specially and injuriously affected by this action, thereby satisfying the classical aggrievement test.
Moreover, the court declines to follow the defendants' narrow reading of Alarm Applications so that only taxpayers or, arguably, those with a pecuniary interest in the town or a pecuniary relationship with the town may sue the town under the circumstances of this case. The special relationship in this matter stems from the facts alleged, which have been noted above: the plaintiffs have an easement of access over Wellswood Road and the defendants have attempted to barricade the road, thereby landlocking the property.
Accordingly, the defendants' motion to dismiss on the ground of lack of standing is denied.
The defendants also argue that they are immune from liability for closing Wellswood Road based on municipal immunity. Generally, governmental immunity must be specially pleaded in accordance with Practice Book § 10-50. See Carruba v. Moskowitz, 81 Conn.App. 382, 399, 840 A.2d 557 (2004), aff'd, 274 Conn. 533, 877 A.2d 773 (2005). "[G]overnmental immunity unlike sovereign immunity does not involve subject matter jurisdiction." Cobuzzi v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 0540007167 (November 18, 2005, Shapiro, J.) ( 40 Conn. L. Rptr. 330, 331), quoting Pacheco v. Waterbury, Superior Court, judicial district of Waterbury. Docket No. CV 99 0151152 (August 3, 1999, Pellegrino, J.). See also Vejseli v. Pash, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (May 5, 2006, Gallagher, J.); Thetreault v. Wolford, Superior Court, judicial district of Windham, Docket No. CV 0200068301 (December 9, 2002, Foley J.); Rondini v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 000044385 (May 30, 2001, Jones, J.) ( 29 Conn. L. Rptr. 598); Kosloff v. Fairfield County Council of Boy Scouts of America, Superior Court, judicial district of Fairfield, Docket No. CV 91 280331 (February 25, 1992, Spear, J.) ( 6 Conn. L. Rptr. 88).
The rationale is that "[w]hile the doctrine of sovereign immunity is properly raised by a motion to dismiss, a suit against a municipality is not a suit against the sovereign. Sovereign immunity and municipal immunity are distinct though related concepts . . . [The courts] have long recognized the common-law principle [of sovereign immunity] that the state cannot be sued without its consent . . . Alternatively, [a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts . . . Governmental immunity, which applies to municipalities, is different in historical origin, scope and application from the sovereign immunity enjoyed by the state. A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action . . . Municipalities do, in certain circumstances, have a governmental immunity from liability . . . But that is entirely different from the state's sovereign immunity from suit . . . (Citations omitted; emphasis in original; internal quotation marks omitted.) Cobuzzi v. New Britain, supra, 40 Conn. L. Rptr. 331.
Accordingly, the defendant's motion to dismiss on the ground of governmental immunity is denied.
Finally, the defendants argue that the plaintiffs have failed to exhaust all available legal remedies inasmuch as, pursuant to General Statutes § 13a-63, the plaintiffs could bring an action to require the town of Columbia to restore its roads which could service the property. "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed . . ." (Citation omitted; internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
Inasmuch as the remedy that the plaintiffs seek is to enjoin the town of Hebron from closing Wellswood Road, the court finds that the plaintiffs have not failed to exhaust the available administrative remedies cited by the defendants.
Accordingly, the defendant's motion to dismiss on the ground of failure to exhaust legal remedies is denied.
CONCLUSION
For the above enumerated reasons, the defendants' motion to dismiss is hereby denied.