Opinion
No. MMX-CV08-4009306-S
February 23, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO DISMISS
This memorandum addresses the court's jurisdiction over the appeal of a decision by the defendant, the town of Durham planning and zoning commission (Durham), to issue a permit in August of 2008. The plaintiff, Arrigoni Enterprises, LLC (Arrigoni) has appealed the renewal and extension of a permit which allowed the defendant, Tilcon, Inc., (Tilcon) to continue the process of excavating and removing earth from certain portions of its property located in Durham. Tilcon has moved to dismiss Arrigoni's appeal, claiming that the court lacks subject matter jurisdiction on grounds of mootness; Durham has joined in Tilcon's motion.
For the following reasons, the court finds that it lacks jurisdiction due to mootness. Accordingly, the motions to dismiss are hereby GRANTED.
I PROCEDURAL HISTORY
For purposes of this jurisdictional dispute, it is uncontested that Tilcon owns real property in Durham, and that Arrigoni owns abutting real property. It is further uncontested that for a number of years prior to August 2008, Tilcon annually submitted an application for a permit allowing excavation on and removal of earth from its property; that this permit had been annually approved, renewed and extended by Durham; and that in August 2008, Durham issued a one-year renewal and extension of Tilcon's earth excavation and removal permit (the permit). It is further uncontested that in 2009, Tilcon again applied for renewal and extension of its permit, and that in August 2009, Durham again renewed and extended this permit for a one-year period, to expire in 2010. Finally, it is uncontested that Arrigoni did not appeal Durham's decision to grant the August 2009 renewal and extension of Tilcon's permit.
On August 26, 2008, Arrigoni filed its complaint in appeal of Durham's August 2008 extension and renewal of the permit; the appeal names both Durham and Tilcon as defendants. Among other things, Arrigoni's complaint alleges that Tilcon's 2008 permit renewal and extension application was subject to the process of site plan review established by Durham's zoning regulations. The complaint further alleges that Durham acted illegally, arbitrarily and in abuse of its discretion both in approving the site plan and in renewing and extending the permit for the one-year period commencing in August 2008. By way of relief Arrigoni requests the court to sustain its appeal; to declare the issuance of the August 2008 renewal permit to be null and void; to order Durham to deny Tilcon's 2008 site plan application; and to render other relief.
On November 2, 2009, Tilcon filed a motion to dismiss Arrigoni's appeal (#114) with a memorandum in support of that motion (#115). Durham filed a similar motion to dismiss and supporting memorandum in court on December 14, 2009, joining Tilcon's position and alleging lack of subject matter jurisdiction. Generally, the defendants contend that the court lacks jurisdiction in this case because the 2008 extension and renewal permit has expired, having been superseded by the 2009 permit, rendering the zoning appeal moot. Specifically, the defendants argue that because no appeal was taken from the issuance of the 2009 permit, which became operative for the one year following expiration of the 2008 renewal permit, Arrigoni's appeal should be dismissed as moot because it challenges a permit which no longer has any effect on the parties' use of the land in question. Tilcon and Durham contend that the 2009 renewal permit now controls Tilcon's present, existing, and unappealed right to excavate and remove earth from the subject property and that, because no practical relief can be granted, the court must dismiss Arrigoni's appeal of the issuance of the 2008 permit.
Duplicates of Tilcon's submissions appear in the court file at #116 (Tilcon's Motion to Dismiss) and #117 (Tilcon's Memorandum in Support of Motion to Dismiss).
Arrigoni filed its objection to the motion to dismiss (#118) and an accompanying memorandum of law (#119) on November 10, 2009. Arrigoni asserts that its appeal issues are not moot because, as alleged in the complaint, Durham's conduct in issuing Tilcon's 2008 permit is "capable of repetition, yet evading review" and that, therefore, this case falls within the exception to the mootness doctrine expressed in Loisel v. Rowe, 233 Conn. 370, 379, 660 A.2d 323 (1995).
The parties concluded their argument in support of, and in objection to, the pending motions to dismiss on December 14, 2009.
II
CT Page 5493
JURISDICTION AND MOOTNESS
The purpose of a motion to dismiss is to attack "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007)."[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). Nevertheless, "[w]hen 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon 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 . . ." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
A motion to dismiss may properly be based upon a claim that mootness as to the subject matter of the pending litigation renders the court without jurisdiction. "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 547, 920 A.2d 316 (2007). "The test for determining mootness is whether a judgment, if rendered, would have any practical legal effect upon an existing controversy. Thus, the central question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of the litigation has forestalled the prospect for meaningful, practical, or effective relief." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 13, 917 A.2d 966 (2007). "[T]he test for determining mootness is not [w]hether the [plaintiff] would ultimately be granted relief . . . The test, instead, is whether there is any practical relief this court can grant the [plaintiff] . . . If no practical relief can be afforded to the parties, the [case] must be dismissed." (Internal quotation marks omitted.) In re Jeremy M., 100 Conn.App. 436, 441-42, 918 A.2d 944, cert. denied, 282 Conn. 927, 926 A.2d 666 (2007).
Our Supreme Court has identified the protocol for discerning cases in which an exception to the mootness rule will apply because the allegations of the complaint present issues that are "capable or repetition, yet evading review," thus allowing for jurisdiction under circumstances that may otherwise fail. Loisel v. Rowe, supra, 233 Conn. 3 82-83; see also Sweeney v. Sweeney, 271 Conn. 193, 201-02, 856 A.2d 997 (2004). "Our cases reveal that for an otherwise moot question to qualify for review under the `capable of repetition, yet evading review' exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Emphasis added.) Loisel v. Rowe, supra, 233 Conn. 382-83.
In support of their motions to dismiss, Tilcon and Durham argue that the issuance and existence of the 2009 renewal and extension of the permit effectively extinguishes the court's jurisdiction over issues related to the 2008 permit, rendering the appeal moot and not saved by any of the Loisel v. Rowe, supra, or Sweeney v. Sweeney, supra, 271 Conn. 201-02, exceptions. They argue that because the 2008 permit has expired and the 2009 permit remains in effect, there is no longer a live controversy from which practical relief can be granted. Under these circumstances, the defendants claim that the court lacks jurisdiction. See, e.g., Ike, Inc. v. East Windsor Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 96 0563997 (December 18, 1997, Levine, J.) [ 21 Conn. L. Rptr. 457] ("Because the period for which the 1995 permit was renewed expired in August 1997, this appeal is, in a traditional sense, moot."); Fairfield Resources, Inc. v. Brookfield, Superior Court, judicial district of Danbury, Docket No. 31 91 56 (April 25, 1996, Leheny, J.) ("The defendants are correct when they argue that Dyno's blasting permit expired on October 27, 1994, and therefore this appeal is moot."). Further, the defendants contend that because no practical relief can be provided for Arrigoni under the circumstances of this case, the court lacks jurisdiction to entertain the appeal.
The defendants have submitted, and the plaintiff does not dispute, that prior to the expiration of the 2008 permit, the August 2009 permit renewal was granted by the Durham planning and zoning commission after review of Tilcon's site plan by the Durham inland wetlands and watercourses agency. Motion to Dismiss #114; Tilcon's Memorandum #115, Item 1 (Town of Durham's August 19, 2009 Decisions of the Planning and Zoning Commission's 2009 and August 10, 2009 Decisions of the Inland Wetlands and Watercourses Agency) and Item 2 (August 12, 2009 letter of Durham Inland Wetlands and Watercourses Agency to Tilcon). See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516 (court may consider undisputed facts raised by a motion to dismiss when determining the jurisdictional issue). Where the defendants have discontinued the practice challenged by the lawsuit, there is no longer a live controversy and the plaintiff's claims become moot. Russo v. Common Council, 80 Conn.App. 100, 106, 832 A.2d 1227 (2003).
Arrigoni asserts that the court has jurisdiction because its appeal issues qualify for review under the "capable of repetition, yet evading review" exception to the mootness rule as it has met each of the three legal requirements for the mootness exception as provided by Loisel v. Rowe, supra, 233 Conn. 382-83. Arrigoni argues the following: the 2008 permit was applicable for a limited duration so that litigation questioning its validity would be moot before the appeal could be concluded; questions concerning the validity of the 2008 permit would arise again in the future affecting Arrigoni as an abutting property owner; and the issues related to validity has some public importance.
As previously noted, "[u]nless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) Sweeney v. Sweeney, supra, 271 Conn. 202. The court finds that Arrigoni has met only the first and third, but not the second element of the exception to the mootness doctrine, and that, accordingly, the pending appeal must be dismissed.
A LIMITED DURATION ELEMENT
Arrigoni has satisfied the first element of the mootness exception related to the duration of the litigation because the effect of the 2008 renewal permit, by its very nature, is of limited duration, anticipated to expire after a year. "The first element in the analysis pertains to the length of the challenged action . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced . . . [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] . . . or the challenged action had an intrinsically limited lifespan." (Citations omitted; internal quotation marks omitted.) Collins v. Collins, 117 Conn.App. 380, 388, 979 A.2d 543 (2009).
Our Supreme Court identified such a time constraint in Sweeney v. Sweeney, supra, 271 Conn. 202, addressing mootness issues related to a pendente lite order that had been entered in the course of dissolution proceedings. The court in Sweeney concluded that the pendente lite order at issue was inherently limited in duration, and subject to the exception to the mootness doctrine despite the fact that dissolution proceedings vary as to their relative length and even though concerns often recur post-judgment in family relations litigation. Id. The Supreme Court in Sweeney found that it was unlikely that there would be appellate resolution of the challenged pendente lite order before the final judgment on the dissolution was entered, thereby superseding the pendente lite order. Accordingly, the Sweeney court found that the first prong of the "capable of repetition, yet evading review" had been met through allegations that were time-limited in nature. Id., 203-04.
In fact, it took twenty-three months before the superseding final judgment was entered in that matter. Sweeney v. Sweeney, supra, 271 Conn. 202-03.
It is uncontested that Durham's renewal of Tilcon's permit was inherently effective for only one year, pursuant to the applicable zoning regulations; it is further uncontested that the 2008 permit was superseded by the issuance of the 2009 permit. Despite the parties' diligent pursuit of the zoning litigation in the present case, it has taken sixteen months for the appeal to come to trial, so that appellate resolution of this issue could not have occurred before the expiration of the challenged 2008 action. Consistent with the Supreme Court's holding in Sweeney, there is a strong likelihood that the substantial majority of cases raising a question about the validity of the renewal of a one-year earth excavation and renewal permit would become moot before appellate litigation can be concluded. Accordingly, the plaintiff has satisfied the first requirement of the "capable of repetition, yet evading review" exception.
B CAPABLE OF REPETITION
Arrigoni contends that it has satisfied the second requirement of the mootness exception because Tilcon submits its application for renewal and extension of its removal and excavation permit on an annual basis. Thus, Arrigoni claims, Durham's annual renewal of the permit is ongoing and repetitive, and "not an isolated incident not likely to be repeated in the foreseeable future" and because the plaintiff continues to own the abutting property, it is likely to be affected by the questions presented. The court finds this issue in favor of the defendants, thus defeating Arrigoni's claim that the mootness rule does not apply to the pending appeal, and rendering the case subject to dismissal for lack of subject matter jurisdiction. Sweeney v. Sweeney, supra, 271 Conn. 201-02.
"Analysis under the second requirement [of the "capable of repetition, yet evading review" exception] entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation . . . A requirement of the likelihood that a question will recur is an integral component of the capable of repetition, yet evading review doctrine. In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future." (Citation omitted; internal quotation marks omitted.) Collins v. Collins, supra, 117 Conn.App. 388-89.
In determining that the issues on appeal related to the approval of the 2008 permit are not likely to recur, the court has been guided by the Appellate Court's analysis of the "capable of repetition" claims raised in Collins v. Collins, supra, 117 Conn.App. 389. Like Sweeney v. Sweeney, supra, 271 Conn. 193, Collins involved an appeal of a pendente lite order in a family relations case. In Collins, the defendant father argued that issues surrounding parenting time were not moot, even though they were subject to a final judgment in his dissolution and custody case; he claimed that such issues were highly likely to arise again in the future, as he anticipated seeking more orders supporting increased exercise of his custodial rights over time. The Appellate Court concluded, however, that it was not clear that the question presented would arise in the future; for this to happen, the defendant would have to affirmatively move to oppose the custody arrangement that already had been set out in the final judgment of dissolution. Collins v. Collins, supra, 117 Conn.App. 390. For this reason, inter alia, the Appellate Court stated that it was "merely speculative that the circumstances surrounding the pendente lite order will have any future effect." Id., 392. Correspondingly, although Tilcon will undoubtedly apply for renewal and extension of its excavation and removal permit again, it is not clear whether Durham will apply its regulations in the same allegedly improper manner again, as described in Arrigoni's present complaint, or whether proper procedures for site plan review will be undertaken by the municipality. Moreover, based on the absence of any appeal of the 2009 permit, it is not clear whether Arrigoni would take steps to oppose Durham's renewal of the permit in the future.
See footnote 1.
A similar point was discussed in Russo v. Common Council, 80 Conn.App. 100, 110, 832 A.2d 1227 (2003), where the Appellate Court found it to be unclear whether a municipality would use improper administrative protocols in the future, to the detriment of a litigant. In Russo, a resident taxpayer brought an action against Middletown's common council claiming that the defendants had improperly reduced the net taxable grand list for the 2000-2001 budget year by $46 million, thereby increasing the city's mill rate and raising taxes for residents. In that case, the Appellate Court stated that there was "no indication that there is a reasonable likelihood the defendants plan to use that [improper method of establishing the mill rate] in the future. The plaintiff claims that the defendants had carried on that practice for years, and, therefore, it is entirely possible that it will be resumed and will again have an impact on the plaintiff . . . However, Loisel does not provide an exception to the mootness doctrine when it is merely possible that a question could recur, but rather there must be a reasonable likelihood that the question presented in the pending case will arise again in the future . . . When the conflict between the parties has been resolved to the extent that no immediate relief may be granted, the bare fact that the resolution does not eternally preclude the conduct from arising again does not except the claim from being rendered moot." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 110.
In the present case, Arrigoni has not demonstrated the existence of a "reasonable likelihood" that Durham will apply its regulations relating to Tilcon's site plan review in the same allegedly improper manner in the future. See id., 110. Although at oral argument the plaintiff suggested that Durham would, in the future, repeat its conduct with regard to Tilcon's annual applications for extension and renewal of the permit, there were no facts alleged in the complaint, and no evidence submitted, that support this contention; no request for amendment of the complaint has been proposed to raise this contention from the level of the "merely possible" eschewed in Russo v. Common Council, supra, 80 Conn.App. 100, to the likelihood status that is a requisite to avoiding the impact of mootness upon this court's jurisdiction. Id., 110. During argument on the motion to dismiss, Arrigoni asserted that the same allegedly improper site plan map has been submitted and approved by Durham every single year; however, the record is absent of any document, exhibit, or other indicator to support this statement.
Again, see footnote 1.
The court cannot not speculate as to the future actions of Durham; such action would violate the edict of Russo v. Common Council, supra, 80 Conn.App. 100, which requires the court to consider only the likelihood of a municipality's future conduct. Accordingly, Arrigoni has failed to satisfy the second requirement of the "capable of repetition, yet evading review" exception, rendering its complaint subject to dismissal for lack of subject matter jurisdiction due to mootness.
C
CT Page 5499
THE PUBLIC IMPORTANCE ELEMENT
As Arrigoni's failure to satisfy the second element is fatal to its mootness claim, the court is not required to address the element of public importance. Collins v. Collins, supra, 117 Conn.App. 393 n. 7 ("Because we conclude that the defendant fails to satisfy the second requirement, we need not analyze the third requirement, i.e., whether the question presented in the appeal is of public importance, as all three requirements must be satisfied for the exception to apply."). As previously noted, however, Arrigoni has met the third element of the mootness exception in the context of its appeal at the trial court level. Accordingly, without prejudice to the defendants' successful motion to dismiss, the court provides the following analysis in order to comply with Practice Book § 64-1(a).The third requirement of the "capable of repetition, yet evading review" exception to the mootness doctrine is that the question presented in the pending case have "some public importance." Loisel v. Rowe, supra, 233 Conn. 382. "The requirement of public importance is largely self-explanatory . . . Consideration of the importance of the issue represents a sound means for distinguishing those cases that should be reviewed and those that should not." Loisel v. Rowe, supra, 233 Conn. 387. In the present case, Arrigoni argues that, through its complaint, it has raised factual and legal issues that implicate important public policies of the state insofar as predictability with regard to the regulation of land use, stabilization of property values and the protection of the environment by reducing soil erosion and sediment pollution are concerned. Arrigoni argues that the defendants' jurisdictional concerns must fail in the face of the importance of the public policies placed at issue by its complaint. In support of these contentions, Arrigoni cites numerous statutes dealing with the government's role in assuring public supervision of the aforementioned policies, including General Statutes § 8-2 (regulations of zoning commission); General Statutes § 22a-325 et seq. (Soil Erosion and Sediment Control Act); and General Statutes § 8-8(a) (defining, inter alia, "[a]ggrieved person"). See Memorandum in Support of Objection to Motion to Dismiss (#119). The defendants again respond that there is no public importance inherent in the 2008 permit which, while once effective, has long expired, and whose effectiveness has been replaced by the extant and uncontested 2009 permit.
The public importance exception to the mootness rule may be satisfied by considering the policy concerns underlying a statute or regulation with which a plaintiff claims that a defendant has failed to comply. See AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 543, 867 A.2d 37 (2005) (in determining whether the interpretation of a provision of Connecticut's Environmental Protection Act raised a question of public importance, court properly looked to policy concerns underlying the act). Generally, a town's zoning regulations raise matters of public importance such as public health, welfare and safety. See Harris v. Zoning Commission, 259 Conn. 402, 425, 788 A.2d 1239 (2002). ("[T]he justification for zoning in any municipality is that it serves to promote the public health, safety, welfare and prosperity of the community." [Internal quotation marks omitted.]). Accordingly, General Statutes "§ 8-2 authorizes local zoning authorities to impose certain standards and conditions on the use of property when the public interest so requires." (Internal quotation marks omitted.) Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 170, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004). "Section 8-2 requires that the exercise of the zoning power be, inter alia, reasonably related to the promotion of public health, welfare and safety." Volpintesta v. Zoning Board, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 91 0113581 (April 3, 1992, Nigro, J).
Arrigoni's complaint cites numerous specific zoning regulations of public importance with which Tilcon's site plan allegedly failed to comply in the context of the 2008 permit renewal process, including, inter alia, regulations requiring the site plan to include the following: any proposed blasting or storing of explosives, the hours of operation at the site, the location of buffer zones, the location of all roads, driveways, parking, and loading areas, as well as a soil erosion and sedimentation control plan. Resolution of the claims raised through Arrigoni's complaint concerning the renewal of Tilcon's permit would thus, indeed, have required the court to identify which of Durham's zoning regulations should have been the subject of compliance during the 2008 permit renewal process. To address Arrigoni's claims on their merits, the court would have been specifically required to acknowledge and assess the defendants' attention to those provisions requisite to review and approval of any site plan submitted in support of Tilcon's 2008 permit renewal application. Regulations such as those identified in the plaintiff's complaint are related intrinsically to the public health, safety and welfare of the citizens of Durham, as they deal with, among other things, soil erosion and sediment control, as well as traffic and appropriate property usage within that municipality. See AvalonBay Communities, Inc. v. Zoning Commission, supra, 87 Conn.App. 543; see also Harris v. Zoning Commission, supra, 259 Conn. 425.
Although Arrigoni has failed to satisfy the critical second element of the exception to the rule against mootness, the court does find that "some public importance" exists in the issues raised by the plaintiff's complaint. Therefore, although it provides no relief insofar as the present appeal is concerned, Arrigoni has satisfied the third requirement of the "capable of repetition, yet evading review" mootness exception. Loisel v. Rowe, supra, 233 Conn. 382-83; Sweeney v. Sweeney, supra, 271 Conn. 201-02.
III CONCLUSION
In this case, in the face of the extant, uncontested 2009 permit allowing Tilcon to excavate and remove earth from its property in Durham, the court can grant no practical relief to Arrigoni by addressing the validity of the 2008 permit. During argument on the motion to dismiss, Arrigoni did not suggest any practical relief that could be granted by this court even if it found that it had jurisdiction to hear the appeal. Instead, Arrigoni requested that the court address the appeal's substantive issues so as to set precedent for the protocol Durham would use to review Tilcon's site plans in the future. However, the court is authorized to grant such a request only after the determination that the plaintiff has satisfied all of the criteria set forth in the "capable of repetition, yet evading review" exception to the mootness doctrine. See Part II. C.
Arrigoni has failed to demonstrate that its appeal satisfies the second requirement of the "capable of repetition, yet evading review" exception to the mootness doctrine. Accordingly, the court lacks jurisdiction over this appeal.
WHEREFORE, Arrigoni's objection to the motions to dismiss is hereby OVERRULED, and the defendants' motions to dismiss are hereby GRANTED.