August 11, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#120)
One of the defendants, Paul A. Baudouin, moves to dismiss the complaint filed by the plaintiffs, Westside Package Store, LLC (Westside Package) and MGZ Partnership, claiming that the plaintiffs' action is moot. The plaintiffs object to the motion, asserting that their claim is not barred by the mootness doctrine. For the following reasons, Baudouin's motion to dismiss is granted.
On November 18, 2009, the Torrington planning and zoning commission (the commission) granted an application submitted by Baudouin, permitting him to use the premises at 211 High Street, Unit 4, in Torrington, as a package store. On December 14, 2009, the plaintiffs filed a complaint, appealing the commission's decision, and on May 26, 2010, the plaintiffs filed an amended complaint. Although the complaint has been amended the cause of action continues to be an appeal from the commission's decision.
The basis for the plaintiffs' appeal is that Baudouin's package store is within five hundred feet of a place of worship; and (2) within fifteen hundred feet of Westside Package. The plaintiffs assert that, for both of the foregoing reasons, the application was improperly granted because Torrington zoning regulation 5.3.1 prohibits the operation of a package store within five hundred feet of a place of worship. It further prohibits the operation of a package store within fifteen hundred feet of another package store.
Regulation 5.3.1 provides, in relevant part: "5.3.1 Location of Package Stores. A. The public entrance to a package store shall not be: a. within 1,500 feet as measured within a City accepted right of way of the public entrance of any other package store; b. within 500 feet as measured within a City accepted right of way of any lot used for a place of worship, public or private school, hospital, or library."
On May 26, 2010, the commission eliminated regulation 5.3.1. That action became effective on May 29, 2010. Consequently, Baudouin contends that the elimination of the regulation also eliminates the controversy between the parties, since no relief can be afforded to the plaintiffs. On June 9, 2010, the plaintiffs appealed the decision to eliminate regulation 5.3.1. The only defendant in that case, Docket No. CV 10 6002537, is the commission.
On June 8, 2010, the liquor control division of the Connecticut department of consumer protection (DCP) issued a ninety-day provisional permit to Faith Yagar, allowing her to operate a package store at 211 High Street in Torrington. Various residents of Torrington appealed that decision in the judicial district of New Britain, Docket Number CV 10 06005550. The only defendant in that case is the DCP.
This matter was heard at short calendar on July 19, 2010. At that time, Baudouin represented that, based upon the permit issued by the DCP, there is currently a package store in operation at 211 High Street, Unit 4, in Torrington.
A motion to dismiss "properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). The motion to dismiss is the appropriate procedural device to challenge the court's subject matter jurisdiction. McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 517, 590 A.2d 438 (1991). "[W]henever a court discovers that it lacks jurisdiction, it is bound to dismiss the case . . ." (Internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). The motion to dismiss admits all well-pleaded facts, and the court may look to the pleadings, the record, and any affidavits in its determination of the jurisdictional issue. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction . . . We begin with the four part test for justiciability . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. 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." (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008). "[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Id., 374.
Baudouin contends that the commission's decision to eliminate any distance requirements from its zoning regulations eliminates the controversy between the parties. He claims that, even if the plaintiffs could establish that Baudouin's package store is within the limits prescribed by regulation 5.3.1, the elimination of that regulation makes it impossible to grant any practical relief to the plaintiffs.
The plaintiffs object to the motion. They assert that: (1) their measurements demonstrate a violation of regulation 5.3.1; (2) the commission improperly repealed regulation 5.3.1; and (3) the DCP's decision to grant a permit to Baudouin is the subject of a separate appeal.
The plaintiffs call upon the court to reverse the commission's decision to grant the permit. It is self-evident that the court cannot and will not, in the context of ruling on the defendant's motion to dismiss, grant the plaintiffs the ultimate relief that they seek. The plaintiffs also request that this court reverse the commission's decision to abolish regulation 5.3.1. It is equally self-evident that this court will not grant such relief in the context of a ruling on the defendant's motion to dismiss. The court cannot grant relief that is not the subject of the case in controversy. Indeed, the plaintiffs have filed a separate complaint seeking to reverse the commission's elimination of regulation 5.3.1. Finally, the plaintiffs contend that this case is not moot because, if they prevail, they will then proceed with their appeal of the commission's elimination of regulation 5 3.1.
The commission has seen fit to eliminate regulation 5.3.1. Thus, at this time, there is no basis upon which to challenge the commission's decision to grant a site location permit to Baudouin. It is true that, at some point, the plaintiffs might prevail in the separate action in which they challenge the commission's decision to eliminate regulation 5.3.1. Since such a result is merely speculative at this time, it constitutes an insufficient basis to permit this action to continue. Regulation 5.3.1 does not exist at this time, and therefore there is no actual controversy among the parties. Finally, even if the plaintiffs were to ultimately establish that the permit was issued in violation of the distance requirements of regulation 5.3.1, the elimination of that regulation precludes the court from granting any practical relief to the complainant.
For the foregoing reasons, the matter originally in controversy is now moot, and Baudouin's motion to dismiss is granted.