Opinion
No. CV-07 4008719-S
June 12, 2008
MEMORANDUM OF DECISION RE MOTIONS To DISMISS #101 #107
I. BACKGROUND
This is an action for declaratory relief to quiet and settle the title to a 52-acre parcel of land located in Meriden, in which the plaintiff, Nipmuc Properties, LLC (Nipmuc), claims a leasehold interest. This action was filed on November 15, 2007, and follows a previous action brought by the plaintiff, Nipmuc, to declare its rights to possession of the original lease, held in escrow. See Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0281664 (August 11, 2005, Taylor, J.), aff'd, 103 Conn.App. 90, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007) (the Appellate Court held that approval of the lease agreement by the Connecticut Siting Council was a condition precedent to delivery of the original lease from the escrow agent).
In the earlier case involving Nipmuc, which will be referred to in this decision as "Nipmuc I" the court adopted stipulated findings of fact. They included the following facts, which the court refers to in these proceedings by way of background, and are not adopted by the court for any other purpose. On April 27, 1999, the Connecticut Siting Council issued to PDC-El Paso (PDC), a Certificate of Environmental Compatibility and Public Need (Certificate) for construction of an electric generation facility (Facility). The Certificate was issued in accordance with and subject to the terms and conditions set forth in the Siting Council's decision and order. The Siting Council's Findings of Fact stated: "Approximately 700 acres of land would be deeded to Berlin and Meriden on title interest. Some 30 acres of traprock ridges would be under a conservation restriction. About 60 acres around Beaver Pond in Meriden would be restricted to use as open space, recreational purposes, or educational use. An additional 14.6 acres of land would be placed under conservation restriction for vernal pool protection west of the 36-acre site." The Siting Council's decision and order further stated: "The facility shall be constructed and operated substantially as specified by the certificate holder in the application and record, except where otherwise ordered by the council." On August 2, 2001, Meriden Gas Turbine (MGT), the current owner of the land, submitted a development and management plan (DM Plan), requesting the Siting Council's approval of the construction of the access road to the power plant, site excavation and grading. On September 4, 2001, MGT submitted a second DM Plan to the Siting Council seeking to use different turbines at the Facility. On September 12, 2001, the Siting Council approved MGT's two DM Plans. On September 7, 2001, PDC submitted a document, entitled "Disposition of Land Within the Larger Parcel" to the Siting Council. On September 12, 2001, Joseph F. Carabetta, "Agent" for Nipmuc, wrote to Joel Rienbold, Executive Director of the Siting Council, asking that the "Siting Council give due consideration and support for the contact [sic] rights of NIPMUC to that 52 acres." By letter dated September 14, 2001, "the Council denied a request by PDC-El Paso Meriden, LLC to retain 51.9 acres of land on the 845.5-acre site. The Council ruled that this 51.9 acre parcel of land be included in the acreage donated to the City of Meriden and the Town of Berlin, Connecticut, a total donation of 808.8 acres."
The court addresses two motions to dismiss in this decision. The first motion was filed by the defendant, State of Connecticut Siting Council (Siting Council). The second was filed by the defendant, City of Meriden (Meriden). Although these motions to dismiss were argued on separate occasions, they have been combined by the court for the purpose of this decision. For reasons more fully set forth herein, the Siting Council's motion to dismiss is granted and Meriden's motion to dismiss is denied.
The first hearing was held on February 26, 2008, and the second was held one month later. At oral argument on Meriden's motion to dismiss, the claims of res judicata and collateral estoppel were withdrawn.
The court will summarize the plaintiffs' allegations, as follows. The 52-acre parcel of land subject to the disputed title in this case was part of a much larger 845-acre parcel located in Meriden and Berlin, and originally owned by Nipmuc. Summitwood Development, LLC (Summitwood), the second plaintiff in this action, contracted with Nipmuc for the exclusive right to purchase this larger property. On July 15, 1998, Summitwood entered into a trust agreement with PDC-El Paso, LLC (PDC) to purchase the land from Nipmuc and sell it to PDC for the purpose of building a power generation facility. The agreement provided that Summitwood would retain the right to 30 acres within the larger parcel, for no consideration, with the particular location to be determined by the parties at a future date.
On April 27, 1999, the Siting Council issued a Certificate of Environmental Compatibility and Public Need (Certificate) to PDC. The Certificate was issued pursuant to General Statutes §§ 16-50g et seq., for the purpose of building the power generation facility on the larger, 845 acre parcel. On December 21, 2000, Summitwood and PDC amended their original trust agreement whereby Summitwood would retain the 30-acre parcel, and replaced it with a new agreement to, upon closing, both quitclaim a 52-acre parcel to Summitwood and lease the 52-acre parcel to Summitwood or its nominee. Upon execution of the amended agreement, the lease was signed by a representative of Summitwood "in favor of Nipmuc, Summitwood's nominee," and was placed in escrow. It is this 52-acre parcel that is subject to this quiet title action.
Although the nature of this transaction is unclear, these allegations suggest that Summitwood was intended to receive a quitclaim deed and Nipmuc was intended to receive a lease, both of which were to be applicable to the same 52-acre parcel.
On January 10, 2001, PDC assigned all its rights and obligations under its agreement with Summitwood to Meriden Gas Turbines, LLC (MGT). On the same day, MGT closed on the 845-acre parcel. The deed to this property refers to the lease in favor of Nipmuc as an encumbrance on the property. After MGT closed title to the 845 acres, PDC continued the process of obtaining the permits necessary to build an electric generation facility on the property. On September 7, 2001, PDC submitted a document to the Siting Council entitled "Disposition of Land Within the Larger Parcel," which was followed by a letter from a representative of Nipmuc, dated September 12, 2001, specifically requesting consideration of its contractual rights under the 52-acre lease. By letter dated September 14, 2001, the Siting Council denied PDC's request to retain the 52 acres and ordered it to be transferred to Meriden.
In furtherance of its decision, the Siting Council brought an enforcement action against MGT in August of 2005, for the transfer of a 357-acre portion of the 845-acre parcel to Meriden; this portion being located within the geographical boundaries of the municipality, and including the disputed 52-acre parcel. In the enforcement action, Connecticut Siting Council v. Meriden Gas Turbines, Superior Court, judicial district of New Britain, Docket No. CV 05 4007011 (January 13, 2006, Levine, J.), a stipulation was executed by the parties in that case, requiring MGT to transfer the 357 acres to Meriden, subject to the 52-acre lease. Nipmuc, however, now alleges that Meriden has prevented it from taking possession of the land and has refused its tender of tax payments. Nipmuc and Summitwood also allege that the deed from MGT to Meriden was recorded in November of 2006 without listing the 52-acre lease as an encumbrance.
The stipulation is not identified in the pleadings, but was discussed in the briefs submitted to the court and at the hearings on these motions to dismiss.
II. DISCUSSION A. Applicable Standard
"In ruling upon whether a complaint survives a motion to dismiss, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
B. Subject Matter Jurisdiction Over Actions of the Siting Council
The first motion to dismiss is brought by the Siting Council and claims that the court lacks subject matter jurisdiction over its actions due to the failure of the plaintiffs to exhaust administrative remedies. "Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004).
There have been two decisions by the Siting Council adversely affecting the plaintiffs' alleged lease. Neither the original Siting Council order issued on April 27, 1999, nor the subsequent decision issued on September 14, 2001, allowed, as a condition for the issuance of the Certificate, MGT to transfer a leasehold interest in the 52-acre parcel to the plaintiffs. Instead, the Siting Council ordered the 52-acre parcel transferred to Meriden. Although the Siting Council initiated an enforcement action in 2005, the action resulted in a stipulation which allowed the lease to be listed as an encumbrance on the deed to Meriden, apparently without determining its validity or enforceability.
As a preliminary matter, the court must consider the relevant provisions of the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-183(a) provides in relevant part that "[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." Section 4-183(c) provides for a right to appeal within forty-five days after the final decision, and § 4-183(j) provides various grounds for appeal including the violation of statutory and constitutional provisions, as the plaintiffs have claimed in count one. There is no dispute in this case that the forty-five-day administrative appeal period has long passed since the Siting Council made its decisions' affecting the plaintiffs' alleged lease.
General Statutes § 4-183(j) states in full: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
These include the 1999 and 2001 decisions, as well as the 2005 enforcement action resulting in a stipulation.
Notwithstanding the provisions of the UAPA, the plaintiffs contend the court has jurisdiction pursuant to General Statutes § 52-29, which generally provides that the Superior Court has jurisdiction to "declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed," and that "[t]he declaration shall have the force of a final judgment." In claiming jurisdiction pursuant to § 52-29, the plaintiffs cite the court's previous decision in Nipmuc Properties, LLC v. PDC-El Paso, Meriden, LLC, supra, Superior Court, Docket No. CV 02 0281664 (" Nipmuc I"). In Nipmuc I, this court cited to cases holding that § 52-29 provides certain exceptions to the defense of sovereign immunity. Although the cases cited in Nipmuc I do, in fact, provide for exceptions to sovereign immunity, they do not provide for exceptions to the defense of failure to exhaust administrative remedies. Additionally, although the two defenses may be related, the issue before the court concerns the jurisdiction of the court over an order issued by an administrative agency in an administrative proceeding and thus is not directly related to the broader issue of bringing suit against the sovereign. Furthermore, although § 52-29 provides a means to "declare rights," it would serve no judicial purpose to declare an administrative order contrary to the law if the court lacks subject matter jurisdiction due to a failure to exhaust administrative remedies.
In Nipmuc I, this court stated that "[i]n actions such as this for declaratory judgments, the Supreme Court has recognized two exceptions to the defense of sovereign immunity; first, where a declaratory judgment is requested based on a substantial claim that the state or one of its officers violated a plaintiff's constitutional rights; and second, where a declaratory judgment is sought based on a substantial allegation of wrongful conduct to promote an illegal purpose in excess of an officer's statutory authority. See St. George v. Gordon, 264 Conn. 538, 554-55, 825 A.2d 90 (2003). Thus, `[a]n action based on a taking without just compensation may avoid the defense of sovereign immunity where a property interest and constitutional taking are alleged, but only for equitable relief.' 184 Windsor Avenue, LLC v. State, Superior Court, judicial district of Hartford, Docket No. CV H 7060 (April 1, 2004, Dos Santos, J.) (36 Conn. L. Rptr. 729); see also Tamm v. Burns, [ 222 Conn. 280, 283, 610 A.2d 590 (1992)]."
The plaintiffs also cite Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003), in which the Supreme Court indicated that it has "held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citations omitted.) However, Miller is also a sovereign immunity case that involved allegations of unlawful detention and defamation, and did not involve the issue of failure to exhaust administrative remedies.
The court notes that the plaintiff has neither pleaded nor briefed a claim of inverse condemnation, which, in addition to the cases cited herein provides an exception to the requirement of exhaustion. See Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45, 808 A.2d 1107 (2002); also see Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 201-02, 719 A.2d 465 (1998) (the inapplicability of the exhaustion doctrine is equally applicable to municipal land use decisions in both § 1983 taking claims and pure taking claims); also see Lingle v. Chevron USA, Inc., 544 U.S. 528, 540, 125 S.Ct. 2074, 2082 (U.S., 2005).
"The doctrine of exhaustion is nevertheless subject to certain narrowly circumscribed but well recognized exceptions. One such exception involves a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency . . . Although the mere allegation of a constitutional violation will not necessarily excuse a plaintiff's failure to exhaust available administrative remedies . . . we have permitted, under special circumstances, a collateral constitutional challenge to the action of an administrative agency even in the absence of a direct appeal." (Citations omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990). Citing Payne, the Supreme Court more recently reiterated that "[t]he mere allegation of a constitutional violation [however] will not necessarily excuse a [party's] failure to exhaust available administrative remedies . . . The test is whether the appeal would be futile because the administrative agency . . . lacks the authority to grant adequate relief." Stepney, LLC v. Fairfield, 263 Conn. 558, 570, 821 A.2d 725 (2003).
The right to a declaratory ruling may also be appropriate in instances where, subsequent to the appeal period, an agency ruling is not reversed. In Ginsberg v. Post, 177 Conn. 610, 615-16, 418 A.2d 941 (1979), the Supreme Court held that "[s]ince the statutory time for appeal had expired long before the commencement of the declaratory judgment proceedings, this court must conclude that the decision of the commission authorizing the removal by the plaintiff had become final and that the correctness of that decision, therefore, had to be accepted as the law of the case by the trial court . . . We note that the proceedings in the trial court were for a declaratory judgment and that the sole function of the court in those proceedings was to ascertain the rights of the plaintiff under existing law. The court was not called upon, nor did it have jurisdiction, to make a de novo determination of the permissibility under the zoning regulations of the removal of the plaintiff's package store, that question having previously and finally been determined by the commission." (Citation omitted.)
In the present case, the allegations are directed against the agency action and not toward "the statute or regulation under which [the] agency operates." Payne v. Fairfield Hills Hospital, supra, 215 Conn. 680. The plaintiffs instead allege that the Siting Council acted without statutory or constitutional authority. Therefore, the exception provided for in Payne is inapplicable.
Furthermore, if the plaintiffs had been parties to the underlying administrative proceeding, it would not have been futile to seek relief from the Siting Council. The Siting Council had authority to grant adequate relief to the plaintiffs by determining, very simply, that the leasehold agreement would not interfere with PDC's application for the power plant Certificate. In addition, it would not have been futile to appeal the order of the Siting Council as aggrieved parties. The adequate relief on appeal would have been to reverse the administrative order to convey the 52-acre parcel to Meriden in recognition of, for example, the plaintiffs' property right, if any, to the lease. Although this determination may have involved constitutional and statutory issues, such an appeal of the Siting Council's orders would not have been futile, as contemplated in Stepney, because the Siting Council had the authority to grant adequate relief.
Based upon their allegations, the plaintiffs in the present action were aggrieved by the actions of the Siting Council, even though they were not parties to the administrative proceeding, and therefore had the right to appeal its decision. See General Statutes § 4-183(a). Moreover, the plaintiffs had notice of the Siting Council proceedings that allegedly affected their interest in the lease, as evidenced by Nipmuc's communication to the Siting Council on September 12, 2001, and, although aggrieved, chose not to appeal the Siting Council's orders and determinations in a timely manner. The fact that the plaintiffs chose not to participate in the Siting Council proceedings or appeal its decisions and orders should not enable them to collaterally attack the rulings of the Siting Council many years later. Therefore, count one of the complaint is dismissed to the extent that it seeks review of the Siting Council's decision to order the transfer of the land to Meriden.
C. Subject Matter Jurisdiction Over Claims Concerning Meriden
Counts two and three of the complaint are directed toward Meriden. Count two would require Meriden to allow Nipmuc to take possession of the 52 acres pursuant to its leasehold interest in the land. Count three seeks the court's determination of the rights of the parties to the land.
The second motion to dismiss is brought by Meriden for the following reasons: (1) the plaintiffs failed to exhaust administrative remedies related to the Siting Council's orders; (2) the plaintiffs' right to delivery and possession of the lease has been determined previously by the court in Nipmuc I; (3) collateral estoppel and res judicata, based upon the Nipmuc I litigation; (4) the plaintiffs have no interest in the land without possession of the lease and therefore lack standing to bring suit; and (5) mootness, because the Siting Council in its previous orders refused to allow the lease as a condition of the issuance of the Certificate, supported by the court's previous decision to deny delivery of the lease in Nipmuc I. Meriden withdrew its claims of collateral estoppel and res judicata at oral argument. The court addresses the claims in the order they were presented by the plaintiff.
1. Exhaustion
In count one of the complaint, the plaintiffs allege that the Siting Council exceeded its statutory and constitutional authority by ordering the land in question transferred from MGT to Meriden. Meriden seeks a dismissal based upon the Siting Council's theory of exhaustion. As a preliminary observation, it is important to distinguish between the state directly acting to take and convey title to land, as compared to the state ordering a private party to convey title as a condition of obtaining a state benefit, such as the right to operate a power plant.
In the present case, PDC and its successor, MGT, sought the right to build a power plant from the Siting Council. One of the conditions imposed on MGT for building the power plant was the transfer of the 357-acre parcel of land to Meriden for educational and recreational purposes, as well as for open space. The Siting Council admits it had no authority to take title to this land or to transfer title to another party. If, arguendo, MGT's act of compliance with the Siting Council's order was in contravention of a lease agreement entered into by private parties, then MGT chose to violate the lease agreement for the purpose of obtaining the Certificate, but it was not compelled to do so. Therefore, in this context, the Siting Council did not act in excess of its statutory or constitutional authority in requiring that certain conditions be met prior to issuing the Certificate.
It is important to note that the validity of the lease has neither been determined by the court, nor has it been determined by the Siting Council. In fact, this issue was withdrawn from the court's consideration by the plaintiff in Nipmuc I. Without a determination of the validity of the lease, the court could not have made a further determination that MGT violated such an agreement with the plaintiffs to lease the property. The only question determined previously by the court was whether the escrow agent was required to deliver the original lease under the terms and conditions of an escrow agreement.
Prior to its revision in 2004 by Public Acts 2004, Nos. 04-236 and 04-246, and at all times relevant to the proceedings at issue in this case, the Siting Council was required to consider certain statutory criteria in determining whether to issue a Certificate. General Statutes § 16-50p(c)(1) provided, in relevant part, that "[t]he council shall not grant a certificate for a facility described in subdivision (3) of subsection (a) of section 16-50i, either as proposed or as modified by the council, unless it finds and determines: (A) A public benefit for the facility; (B) the nature of the probable environmental impact, including a specification of every significant adverse and beneficial effect that, whether alone or cumulatively with other effects, conflicts with the policies of the state concerning the natural environment, ecological balance, public health and safety, scenic, historic and recreational values, forests and parks, air and water purity and fish and wildlife; and (C) why the adverse effects or conflicts referred to in subparagraph (B) of this subdivision are not sufficient reason to deny the application. For purposes of subparagraph (A) of this subdivision, a public benefit exists if such a facility is necessary for the reliability of the electric power supply of the state or for a competitive market for electricity."
Returning to Meriden's motion, the court has dismissed count one on the basis of the plaintiffs' failure to exhaust administrative remedies. This ruling relieves the Siting Council from defending its decision not to recognize the lease in setting the conditions for the issuance of the Certificate. Meriden claims, and the Siting Council agrees, that this should also provide the basis for dismissal of counts two and three, relating to Meriden. The court disagrees.
This is an action to quiet title and for Meriden to recognize the plaintiffs' lease. The Siting Council order did not directly determine the validity of the lease which was subject to the terms and conditions of private parties. The validity and enforceability of the lease is an independent issue to be determined by the court in this case. For this reason, the doctrine of exhaustion is inapplicable to the validity and enforceability of the lease, because this issue was not determined by the Siting Council. Meriden's motion to dismiss on the ground of failure to exhaust administrative remedies is therefore denied.
2. Delivery and Possession of the Lease Determined in Prior Litigation
Meriden's second claim is that the plaintiffs' right to delivery and possession of the lease was determined previously by the court in Nipmuc I. However, this claim is indistinguishable from Meriden's third claim of res judicata and collateral estoppel, which were appropriately withdrawn at the hearing on this motion to dismiss. "Res judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994)); see Tuchman v. State, 89 Conn.App. 745, 763 n. 7, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005) (collateral estoppel does not implicate a court's subject matter jurisdiction); but see Sullivan v. Thorndike, 104 Conn.App. 297, 312, 934 A.2d 827 (2007) ("we [have] affirmed [a] trial court's dismissal of the party's action on the basis of collateral estoppel"). The court agrees that res judicata is not an appropriate basis for a judgment of dismissal, and therefore Meriden's motion to dismiss may not be granted on this basis.
3. Res Judicata or Collateral Estoppel
Meriden's third claim of res judicata or collateral estoppel was properly withdrawn.
4. Standing
Meriden's fourth claim is that the plaintiffs have no valid and enforceable leasehold interest in the 357-acre parcel and therefore have no standing to bring this action to quiet title. Standing is an appropriate issue to be determined by a motion to dismiss because "[i]f a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 395, 941 A.2d 868 (2008).
An action to quiet and settle the title to real property may be brought pursuant to General Statutes § 47-31. "Section 47-31 provides that the action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it . . . One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties' defendant. Unless a plaintiff has such an interest, he obviously has no right to maintain an action under the statute for the adjudication of any claims concerning the property." (Citation omitted.) Loewenberg v. Wallace, 147 Conn. 689, 692, 166 A.2d 150 (1960).
General Statutes § 47-31 provides in part: "(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property."
Meriden asserts in its motion to dismiss that the alleged lease, absent delivery, is not valid as a matter of law. Based upon this reasoning, Meriden contends, the plaintiffs have no standing. In support of its assertion, Meriden cites to a longstanding line of cases requiring the delivery of a deed to effectuate the conveyance of real property. "The delivery of a deed with intent by the grantor to pass title is essential to a valid conveyance." Lomartira v. Lomartira, 159 Conn. 558, 561, 271 A.2d 91 (1970); see McCook v. Coutu, 31 Conn.App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993). "Delivery of possession is the foundation of a transfer; without delivery there can be no transfer . . . Without delivery and acceptance no conveyance of real estate is valid." (Citations omitted.) City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493 (1922).
The plaintiffs counter that, in a motion to dismiss, the court must construe the facts of the case in a light most favorable to the pleaders, and they are alleging a valid and enforceable lease. Because no affidavits or other factual findings are before the court addressing the factual status of the lease, the plaintiffs claim there is no basis upon which to consider factual assertions that are contrary to the allegations of the complaint. In contraposition, Meriden claims the court may take judicial notice of the Nipmuc I decision, affirmed on appeal, wherein this court determined that the lease was for the term of ninety-nine years, and renewable for an additional ninety-nine years. Further, in that decision, the court determined that the lease may not be delivered to the plaintiffs pursuant to an escrow agreement.
Although "[c]ourt records may be judicially noticed for their existence, content and legal effect[,] [c]are should be taken to avoid noticing judicial records in one case as evidence upon which to find facts in another case. For example, one can judicially notice that certain testimony was given in a case, but not that it was true." C. Tait E. Prescott, Handbook of Connecticut Evidence (4th Ed. 2008) § 2.3.4(d). And although the decision of the court in Nipmuc I may be judicially noticed; see C. Tait E. Prescott, Handbook of Connecticut Evidence (4th Ed. 2008) § 2.17; the facts of Nipmuc I may have changed and, in addition, different factual considerations may be relevant to the legal issues presented in these proceedings.
The court also considers this issue to be directly related to the claims of res judicata and collateral estoppel previously discussed by the court and withdrawn by Meriden. Factual findings and decisions made in other litigation, which may form the basis of a claim of res judicata or collateral estoppel, may not be appropriately considered by the court in a motion to dismiss unless otherwise admitted into evidence. They are, instead, like res judicata or collateral estoppel, issues more appropriately alleged as special defenses to be resolved at trial or on a motion for summary judgment. See Labbe v. Pension Commission, supra, 229 Conn. 816; Tuchman v. State, supra, 89 Conn.App. 763 n. 7.
The court also notes that in Nipmuc I there was no order that the lease remain in escrow. Instead, the court determined that the agreement of the parties was that the lease document was to remain in escrow, absent approval by the Siting Council. Since the escrow agreement was entered into by private parties, it may be subject to modification, and it would therefore be speculative for the court to assume without evidence that the facts surrounding the lease and escrow agreement remain unchanged.
The plaintiffs further counter that neither statutory nor case law require delivery of a lease from escrow to be valid and enforceable, rendering the factual question of delivery irrelevant to the question of law presented in this case. The plaintiffs cite Johnson v. Phoenix Mutual Life Ins. Co., 46 Conn. 96 (1878), for the proposition that a valid lease need only consist of the following elements: "named parties, a subject matter property properly described, a definite term, its beginning and ending fixed and the amount of rent with terms of payment." Although Johnson has never been cited for these requirements in our case law, it has been cited for its holding that the intentions of the parties control the creation of a valid leasehold interest in property. Socony-Vacuum Oil Co., Inc. v. Elion, 126 Conn. 310, 316, 11 A.2d 5 (1940) ("Whether the defendants' execution and subsequent initialing of the lease in duplicate and transmission of it to the plaintiff was an offer to lease only . . . or consummated a complete contract . . . depends upon the intention of the parties." (Emphasis added.)); see Garber v. Goldstein, 92 Conn. 226, 228, 102 A. 605 (1917); see also Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., 96 Conn. 88, 95, 113 A. 156 (1921).
There is abundant authority in our case law for the proposition that delivery of a deed combined with intent is of critical importance in determining the validity of a deed. "[D]elivery of a deed coupled with intent by the grantor to pass title is necessary for a valid conveyance . . . The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee . . . Both elements involve questions of fact for the trier of fact." (Internal quotation marks omitted.) Young v. Young, 78 Conn.App. 394, 398 n. 5, 827 A.2d 722 (2003); see McCook v. Coutu, supra, 31 Conn.App. 701; see also Lomartira v. Lomartira, supra, 159 Conn. 561.
Delivery of a deed into escrow, as is alleged in the present case, has also been held to satisfy the requirement of delivery. Grilley v. Atkins, 78 Conn. 380, 384, 62 A. 337 (1905). As in other cases where delivery of a deed has been discussed by our courts, the intent of the parties in placing a deed in escrow is a factual question to be determined by the trier of fact. "Whether in a given case the delivery of a deed to a third party . . . is to be deemed a delivery in praesenti or not, is generally a question of fact depending upon the conduct and intention of the parties to such a transaction." Grilley v. Atkins, supra, 78 Conn. 386.
Therefore, whether a lease or a conveyance of title, or whether delivered to a third party in escrow, the intent of the parties is of critical importance to any determination of the validity and enforceability of a conveyance of an interest in real property. In view of the factual nature of determining the intentions of the parties, it would be untimely for the court to rule on the issue of standing without establishing the requisite facts necessary for the determination of a valid lease. Further, the court need not address the distinction the plaintiffs would draw between the conveyance of a leasehold interest and other interests in real property at this time, since, in this case, that determination may hinge upon the fact that the lease is for an extraordinarily lengthy period of time, which is neither alleged nor proven to the court for the purpose of Meriden's motion to dismiss.
In addition to the factual question of intent, the plaintiffs' contention that the delivery of a lease is not required to be valid is further complicated by the complaint, which alleges the existence of both a lease agreement and a quitclaim deed for the 52-acre parcel. Complaint, paragraphs 14 and 15. The relationship or distinction between the two is unexplained in the complaint and because the court cannot assume facts not in evidence, the court has further reason not to decide this motion to dismiss based upon a distinction between the delivery of a written lease and a deed conveying other interests in real property.
5. Mootness Resulting from Prior Litigation
Meriden's final claim in its motion to dismiss is that the plaintiffs' claims are barred by mootness, because the Siting Council has refused to allow the lease as a condition of the Certificate, supported by the court's decision to deny delivery of the lease in Nipmuc I.
Although "mootness implicates [the] court's subject matter jurisdiction," Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 810, 925 A.2d 293 (2007), the issue of mootness in this case is unrelated to the Siting Council's decision, because it did not determine the validity and enforceability of the alleged lease. Furthermore, because the court's decision in Nipmuc I is implicated in Meriden's assertion of mootness, the court will not dismiss this matter at this time and on this basis, because it is inextricably intertwined with the issues of judicial notice, res judicata and collateral estoppel, as previously addressed in this decision.
III. CONCLUSION
The Siting Council's motion to dismiss is granted; however, Meriden's motion to dismiss is denied.