No. CV07 4019729
September 17, 2007
MEMORANDUM OF DECISION MOTION TO DISMISS
The plaintiffs have filed this action by way of a writ, summons and complaint dated January 23, 2007, bearing a return date of March 20, 2007. An amended complaint containing three counts was filed on April 9, 2007. The defendant L L Real Estate Holdings II, LLC. (L L) has moved to dismiss the First and Second Counts of the amended complaint of the plaintiffs, John Caltabiano, D.V.M. and The Dohnna, LLC. The defendant argues that the court lacks subject matter jurisdiction because the First and Second Counts, although not timely administrative appeals, are an attempt to raise issues for which the exclusive remedy is an administrative appeal.
The named defendants in the action are L L Real estate Holdings, LLC, Cumberland Farms, Inc., John Raffa, First Selectman of Westbrook, Roger Zito, Building Official Town of Westbrook, Westbrook Zoning Commission, Anthony Beccia Westbrook Zoning Enforcement Officer, Westbrook Zoning Board of Appeals, Robert Landino P.E. and B L Companies, Inc.
The First Count attacks the validity of two decisions of local zoning boards. Specifically, the prayer for relief in this action seeks certain relief with respect to (1) an approval by the Westbrook Zoning Board of Appeals, on June 1, 2005, of an application of L L and the defendant Cumberland Farms, Inc., for certain variances with respect to property located at 1211-1223 Boston Post Road, Westbrook, Connecticut; and (2) an approval by the Westbrook Zoning Commission, on March 23, 2005, of its own application for an amendment to its zoning regulations. The specific relief sought by the subject plaintiffs as to these two approvals are orders "rescinding" them and enjoining town officials from issuing permits based on the approvals, as well as, orders enjoining L L from "acting on" the approvals and ordering it to "restore" the subject property. The plaintiffs also seek an order that the First Selectman "compel" the Zoning Commission and the Zoning Board of Appeals to "rescind" their approvals.
The plaintiffs previously commenced administrative appeals pursuant to General Statutes § 8-8 in which the plaintiffs appealed the two subject approvals. Those administrative appeals were dismissed on October 6, 2006 and November 21, 2006 by the court (Aurigemma, J.). See Caltabiano v. Town of Westbrook Zoning, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4002899S (Oct. 6, 2006, Aurigemma, J.); Caltabiano v. Westbrook Zoning Comm'n, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4003006-S (Nov. 21, 2006, Aurigemma, J.). No petition for review by the Appellate Court was filed in either case.
The Second Count, which is similar to the First Count, attacks the validity of three decisions regarding applications including an unrelated project known as Westbrook Flat Rock, LLC. (Flat Rock). The decisions are designated in paragraph 14 of the amended complaint as "Z0502, Z0505, Z0609."
A third count alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA) by the defendants Landino, B L, Inc., Cumberland Farms, Inc. and L L Real Estate Holdings II, LLC. The subject motion addresses only the First and Second Counts.
The relief sought by the plaintiffs again is that the decisions on applications regarding Flat Rock be "rescinded"; that the First Selectman, Westbrook Building Official, Westbrook Zoning Commission, Westbrook Zoning Enforcement Officer and the Westbrook Zoning Board of Appeals be enjoined from "acting" upon an applications relating to Flat Rock; and "enjoining" the same individuals from making any changes in street and traffic flow affecting property abutting the plaintiff's property at 1201 Boston Post Road, Westbrook, Connecticut. The amended complaint is devoid of any reference to the dates on which these approvals were granted, and the amended complaint is not an administrative appeal pursuant to General Statutes § 8-8.
I Standard of Law Re 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised," Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996). "The motion to dismiss admits all facts which are well pleaded, invokes the existing record, and must be decided on that alone. Where, however, . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001)
General Statutes § 8-8 governs an appeal from a decision of a planning and zoning commission. "Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created . . . and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).
"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 . . ." (Citations omitted.) Stepney v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). "[W]here 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." Id. "[O]ur Supreme Court has "grudgingly carved several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile." An action is futile when "such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . The guiding principle in determining futility is that the law does not require the doing of a useless thing." Santana v. Hartford, 94 Conn.App. 445, 462, 894 A.2d 307 (2006). "[W]hen a party has a statutory right of appeal from a decision of an administrative agency, he may not instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." Jewett City Savings Bank v. Town of Franklin, 280 Conn. 274, 280, 907 A.2d 67 (2006); Carpenter v. Planning Zoning Commission, 176 Conn. 581, 598 (1979). Because the exhaustion of administrative remedies doctrine implicates subject matter jurisdiction, the court must decide whether that doctrine requires dismissal of the plaintiffs' claims Stepney v. Fairfield, supra, 263 Conn. 563.
The defendants argue that if the plaintiffs cannot bring an independent action instead of appealing the decisions, they should be barred from bringing an independent action after their appeals to the trial court have been dismissed. To allow the independent action would be allowing the plaintiffs a second bite at the apple.
In Caltabiano v. Town of Westbrook Zoning, supra, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4002899S (Oct. 6, 2006, Aurigemma, J.), The plaintiffs, The Dohnna, LLC, and John Caltabiano, appealed from a decision of the defendant, Zoning Board of Appeals of the Town of Westbrook ("Board") which granted variances to the defendant, L L Real Estate Holdings II, LLC ("L L") with respect to property located at 1211-1223 Boston Post Road in Westbrook, Connecticut. L L had applied to the Board for variances of the zoning regulations to allow it to demolish two existing structures on the Property and replace them with two retail buildings and related signage. Id. The reason stated for the requested variance was hardship. Id. After a public hearing was held, the Zoning Board of Appeals granted the variance. Judge Aurigemma found that a review of the record revealed "there was a sufficient basis for the Board to grant the requested variances." Id.
"The Board's grant of variances to the defendants was neither illegal, arbitrary nor an abuse of its discretion. The record supports the Board's finding of hardship because the application of the zoning regulations to the Property creates an unreasonable hardship for the defendants. Accordingly, the plaintiffs' appeal is dismissed."
Id. No petition for review by the Appellate Court was filed regarding Judge Aurigemma's decision in Caltabiano v. Town of Westbrook Zoning supra.
In Caltabiano v. Westbrook Zoning Comm'n, supra, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4003006-S (Nov. 21, 2006, Aurigemma, J.), the plaintiffs, John Caltabiano and The Dohnna, LLC, appealed from the Westbrook Zoning Commission's (the "Commission") amendment to a zoning regulation concerning the use of drive-up windows. Id.
The Westbrook Zoning Enforcement Officer had filed a petition to amend the zoning regulations on behalf of the Town of Westbrook. At the time the petition was filed, the regulations limited drive-up windows to Banks in the Commercial Town Center District with certain design requirements. "The proposed amendment addressed two issues: 1) it expanded the use of drive-up windows to several commercial zoning districts in Westbrook rather than just the Commercial Town Center District; and 2) it allowed pharmacies to have drive-up windows in districts in which drive-up windows were allowed."
The Planning Commission of the Town of Westbrook found the proposed amendment to be consistent with the Master Plan of Development and the intent behind these zones and the Senior Coastal Planner for the Coastal Programs Division of the Department of Environmental Protection found the proposed amendments to be "consistent with the policies and standards of the Connecticut Coastal Management Act." Id. A public hearing on the proposed amendments was held, and thereafter, the Zoning Commission members voted unanimously to approve the amendment. The court found that John Caltabiano was not an aggrieved party and that The Dohnna, LLC was an aggrieved party.
The Dohnna, LLC argued that the proposed amendment was spot zoning. The court, in dismissing the appeal stated:
In this case the Commission's expansion of the use of drive-up windows in pharmacies and banks in all commercial districts was an exercise of its statutory duty to enact regulations that are reasonably related to a legitimate purpose of zoning. In enacting the amendment the Commission considered the town's plan of development in accordance with Connecticut General Statutes § 8-2 and the policies and standards of the Connecticut Coastal Management Act in accordance with Connecticut General Statutes § 22a-109. The commission met all of its statutory requirements in examining and implementing reasonable and rational modifications to the zoning regulations and did not act arbitrarily or abuse its discretion.
(Internal citations omitted) Id. Once again, no petition for review by the Appellate Court was filed regarding Judge Aurigemma's decision in Caltabiano v. Westbrook Zoning Comm'n, supra.
The plaintiffs argue that the approvals of the variances and zoning regulation changes were affected by improper and unethical conduct by the defendant Robert Landino and the BL Companies, Inc. (BL) of which Landino was Chairman and Chief Executive Officer (CEO). The plaintiffs alleges that Landino and BL were the project engineers for a development called Westbrook Flat Rock, LLC, which is known as the "Stop and Shop" project. As project engineers, it is alleged that Landino and BL provided the Town of Westbrook with opinions, reports, plans and submissions of "independent, licensed, professional engineers who were at all times acting in compliance with all applicable professional standards." However, after L L and Flat Rock received the necessary favorable decisions from the Town's Boards and Commissions, and after appeals were filed and "substantially concluded in the L L matters, the defendant Landino disclosed at a Westbrook Zoning Commission meeting on July 25, 2006 that he was a principal in the development with others and had been so for many months before, but was careful not to act as the project engineer." The plaintiffs state that the minutes of the July 25, 2006 hearing at which Landino made his disclosure did not contain Landino's statement and that a copy of the transcript containing the statement was not available for the August 8, 2006 trial of the plaintiffs' appeal of the L L decisions.
The plaintiffs also allege that Landino made a more extensive disclosure on August 21, 2006 that he was, in fact, a one-third partner in both L L and Flat Rock. August 21, 2006 was thirteen days after the trial on the L L appeals. The plaintiffs, thereafter, conducted an investigation of Landino's alleged conflict of interest statements of July 25, 2006 and August 21, 2006 and concluded that Landino had violated the State of Connecticut's Code of Ethics for Professional Engineers, as Landino and BL had presented themselves before the Westbrook commissions as the project engineers for both L L and Flat Rock which was a conflict of interest. The plaintiffs argue that Landino's undisclosed financial and partnership interests while acting as the project engineer created a suspicion of unfairness and a resulting distrust regarding the favorable actions by Westbrook regarding the multiple applications of L L and Flat Rock, which required favorable engineering submissions by the project engineer.
The Regulations of Connecticut State Agencies for Professional Engineers Sec. 20-300-12 provides, "[t]he engineer . . . shall issue no statement, criticisms, or arguments on engineering . . . matters Connecticut with public policy which are inspired or paid for by an interested party, or parties, unless he or she has prefaced such comment by explicitly identifying himself or herself by disclosing the identities of the party or parties on whose behalf he or she is speaking, and by revealing the existence of any pecuniary interest he or she may have in the instant matter."
The plaintiffs conclude that this financial conflict of interest by Landino and his company BL makes their engineering submissions to the Town of Westbrook commissions suspect, and therefore, the decisions of the various town agencies having been made on questionable information, are themselves, suspect and irrevocably tainted. "The acceptance of such special attentions we regard as objectionable, even where they produce no effect upon the minds of the committee, as tending to create a distrust of the committee in the mind of the other party and a suspicion of unfairness in the decision of the committee where finally adverse to them. It is far better therefore that no room be given for suspicion or cavil." Greene v. East Haddam, 51 Conn. 547, 559 (1884); see also, Low v. Madison, 135 Conn. 1, 9-10; 60 A.2d 774 (1945) (Holding that a zoning commissioner husband cannot sit on his wife's application for a zoning change); Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 640, 617 A.2d 466 (1992) (reversing the trial court's judgment of dismissal and holding that the trial court improperly concluded that a certain commission member did not have a conflict of interest in voting on an application when the evidence in the record clearly established the appearance of a conflict of interest that would cause the public to lose confidence in the action of the commission). The plaintiffs request that the court exercise its equitable powers and grant injunctive relief, thereby enjoining the implementation of the subject planning and zoning decisions of the Town of Westbrook.
"Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and without fault on his [or her] own part. "Fraud, accident, mistake, and surprise are recognized grounds for equitable interference, when one, without his [or her] own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him [or her] would be against equity and good conscience, and there is no adequate remedy at law." Cavallo v. Derby Savings Bank, 188 Conn. 281, 284-85, 449 A.2d 986 (1982). However, "[e]quity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of a party or his [or her] counsel, unless the mistake is `unmixed with negligence,' or . . . `unconnected with any negligence or inattention on the part of the judgment . . .'" Jarvis v. Martin, 77 Conn. 19, 21, 58 A. 15 (1904); see Hartford Federal Savings Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 434 A.2d 341 (1980).
There is no dispute that the plaintiffs commenced administrative appeals that were ultimately dismissed by the trial court. See Caltabiano v. Town of Westbrook Zoning, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4002899S (Oct. 6, 2006, Aurigemma, J.); Caltabiano v. Westbrook Zoning Comm'n, Superior Court, judicial district of Middlesex at Middletown, No. CV-05-4003006-S (Nov. 21, 2006, Aurigemma, J.). The trials in the two subject appeals occurred on August 8, 2006. The public disclosures of Landino's alleged conflict of interest occurred on July 25, 2006 and again on August 21, 2006. There is no claim by the plaintiffs, that they alerted the trial court at any time of their claims regarding Landino or that they were awaiting transcripts of Landino's statements on July 25, 2006 and August 21, 2006. They never requested that the court reopen the trial proceedings to present new evidence prior to or subsequent to the court's decisions dismissing the appeals on October 6, 2006 and November 21, 2006. "[C]ertain actions of zoning authorities may be attacked in an independent action after the time period for an appeal has passed. The application of this principle, however, has generally been confined to cases of defective statutorily required published notice to the public." (Citations omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 101, 616 A.2d 793 (1992). In addition, the review of administrative agency proceedings is normally limited to the record and no evidence is taken by the trial court. Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 636, 617 A.2d 466 (1992). "There is an exception to this limitation, however, in the case of an allegation of an illegality not apparent on the record. In that situation, the trial court may, in its discretion, permit additional evidence to be presented. A claim of conflict of interest is a common ground for conducting such an evidentiary inquiry." (Internal citations omitted.) Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 636-37, 617 A.2d 466 (1992).
In Shrobar v. Jensen, 158 Conn. 202, 204-05, 257 A.2d 806, the plaintiffs sought to reverse a decision of the Ridgefield Zoning Board of Appeals (ZBA) primarily relying upon an assertion that the court possessed subject matter jurisdiction pursuant to its equitable powers, though the time period for an appeal had passed. Instead the plaintiffs brought an independent action for injunctive relief. In that action they alleged misrepresentations had been made by the applicants' attorney to the ZBA regarding the existing use of the land and the proposed future use. Id., 205.
Our Supreme Court in rejecting the plaintiffs' arguments found that there was no allegation in the complaint that the alleged misrepresentation had played any role in the ZBA's decision or that the ZBA in any way relied upon the alleged misrepresentations. Thus, the assertions of misrepresentation were irrelevant. Id., 206. "[T]he plaintiff should have raised this claim in a direct appeal from the action of the zoning board." Id. A review of Counts One and Two of the complaint in the instant case reveals that the plaintiffs state only that Landino's alleged conflict of interest and ethical violations "taint" and "implicate" the decisions of the Zoning Commission and the ZBA. The plaintiffs should have raised these claims in their direct appeal from the action of the zoning board and the ZBA. See Id., 206.
In the instant case, the alleged failure to disclose a conflict of interest was by Landino, an engineer, who was not a public official. There are no allegations of any misconduct or conflict of interest by any member of the Westbrook Zoning Commission or the Westbrook Zoning Board of Appeals.
The statutory scheme for contesting the validity of the decisions of the Zoning Commission and the Zoning Board of Appeals has been exhausted. Thus, court lacks subject matter jurisdiction as to Counts One and Two. Shrobar v. Jensen, supra, 158 Conn. 206. Accordingly, the motion to dismiss Counts One and Two is hereby granted.