Opinion
KNLCV175015464S
03-07-2018
Adam MCNIECE v. LOMBARDI GRAVEL & EXCAVATION, LLC
UNPUBLISHED OPINION
OPINION
Cosgrove, J.
On May 8, 2017, the plaintiff, Adam McNiece, brought this action against several defendants alleging violations of various rights. The operative claims against the defendant, Lombardi Gravel & Excavation, LLC (defendant), are contained in count one of the plaintiff’s complaint and second revised complaint. The plaintiff alleges violations of Connecticut Environmental Protection Act (CEPA) based on various acts by the defendant. In his prayer for relief, the plaintiff seeks to enjoin the defendant from further construction at the regulated wetlands and watercourses and to restore the wetlands at the subject location. On August 10, 2017, the defendant moved to dismiss the plaintiff’s complaint on the ground that the court lacks subject matter jurisdiction as the plaintiff has failed to state a colorable claim under General Statutes § 22a-16. Specifically, the defendant argues that the plaintiff does not allege unreasonable pollution of natural resources, and the plaintiff’s allegations that the defendant lacks an appropriate permit do not suffice to confer standing under § 22a-16. The defendant’s motion was accompanied by a memorandum of law. On August 14, 2017, the plaintiff filed a memorandum in opposition to the defendant’s motion to dismiss. The matter was argued at short calendar on October 16, 2017.
The plaintiff filed the second revised complaint on August 1, 2017, which is the operative complaint in this case.
General Statutes § 22a-16 provides: " The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state."
The defendant also argues that the plaintiff’s allegations reflect a spite suit, intended solely for the purposes of harassment as the plaintiff brought an identical claim in McNiece v. CLA Engineers, Inc., Superior Court, judicial district of New London, Docket No. KNL-CV-15-5014982-S. A review of the record in McNiece v. CLA Engineers, Inc., indicates that count three of the plaintiff’s complaint, sounding in a CEPA violation pursuant to § 22a-16, was withdrawn by agreement. See # 126. Based on the allegations in the present case, the court cannot conclude that the plaintiff’s allegations against the defendant are for the sole purpose of harassment.
On December 20, 2017 the plaintiff filed a Motion to Disqualify the undersigned. The motion was considered by the court (Frechette, J.) and denied on February 5, 2018. During the 49-day period when the motion was pending, this court stopped its consideration of this motion. It now renders its decision.
DISCUSSION
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, supra, 292 Conn. 651.
Our Supreme Court has " held that § 22a-16 does not confer standing to litigate permitting decisions that are within the exclusive jurisdiction of a state agency." Rocque v. Mellon, 275 Conn. 161, 168, 881 A.2d 972 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). Nevertheless, the court has held that plaintiffs have standing under § 22a-16 when, " although the lack of a permit ha[s] been alleged, the plaintiffs ha[ve] raised independent claims of unreasonable pollution [that] were directed primarily to the polluting activity itself, and not ... to the validity of an existing permit or authorization ..." (Internal quotation marks omitted.) Id., 168. In Rocque v. Mellon, the court concluded that the plaintiff had standing to make a claim pursuant to § 22a-16 because he alleged that clear-cutting trees constituted unreasonable pollution. Id., 169. The court, relying on its reasoning in Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 132, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006), explained that, " in the absence of any property right that would have entitled the ... defendants to apply for a wetlands permit to clear-cut the properties, their activities necessarily would not have been permitted." Id.
" [W]hen there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under CEPA [§ 22a-16], whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme." Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002). " A claim that the defendant has violated the substantive provisions of such a statute ... may give rise to an inference that the conduct causes unreasonable pollution." (Emphasis in original.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 808, 925 A.2d 292 (2007).
In the present case, the defendant has not submitted any evidence in support of its motion to dismiss, and, therefore, the plaintiff need not provide evidence to support the allegations in his complaint. The plaintiff does not allege that the defendant’s failure to obtain a wetlands permit or failure to complete the approved site plan constitute violations of § § 22a-16 or 22a-38(13). Rather, the plaintiff alleges that the defendant " installed a dry hydrant burying substantial wetlands without a permit ... routinely drains wetlands in this dry hydrant area ... [and] failed to complete the approved site, denigrating the wetlands buffer area." The plaintiff also alleges that the defendant " destroyed Connecticut’s natural resources, inland wetland areas, and protected by law buffer areas with blatant disregard for neighbors ..." The plaintiff further alleges that " State Health Code § 19-13-B51d(b)(3) stipulates that no well shall be located within 50 feet of ... a drain carrying surface water or of a foundation drain. The drainage swale, which functions as a drain as it conveys parking lot runoff, is located roughly 35 feet from the well ..." The allegations in count one of the plaintiff’s complaint border on incoherent, however, viewing the allegations in the most favorable light to the pleader, the plaintiff alleges destruction of inland wetlands without a permit through certain activities relating to the installation of a dry hydrant. Further, count one of the plaintiff’s second revised complaint alleges the destruction of buffer areas to the wetlands. This alleged conduct, albeit not entirely clear, creates enough of a factual pleading that count one withstands the defendant’s motion to dismiss. Even if the defendant was able to obtain a permit to install a dry hydrant, in the absence of any right of the defendant to apply for a permit to " destroy" or " denigrate" the inland wetland areas, the defendant’s alleged activities would not necessarily have been permitted. See Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 135-37.
General Statutes § 22a-38(13) provides: " ‘Regulated activity’ means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40 ..."
Section 19-13-B51d of the Regulations of Connecticut State Agencies provides: " (b) Wells with a required withdrawal rate of from ten to fifty gallons per minute ... (3) No such well shall be located within fifty feet of high water mark of any surface water body, nor within fifty feet of a drain carrying surface water or of a foundation drain."
If other pleadings are directed at this portion of the complaint later in the proceeding, the court may need to revisit the issue of standing on another motion. At this stage, however, taking the facts to be those alleged in the complaint, the allegations give a color of standing for the litigation to proceed. Accordingly, the court denies the defendant’s motion to dismiss count one of the plaintiff’s complaint without prejudice.