Opinion
No. CV 01-0808172
January 5, 2005
MEMORANDUM OF DECISION
This action seeks a declaratory judgment that General Statutes § 22a-196, which limits the siting of asphalt plants, is illegally retroactive and unconstitutionally lacks a rational basis, and therefore may not lawfully be applied to the plaintiff and its preexisting plans to build an asphalt plant in Waterbury. The sole issue here is whether the plaintiff's interest in the statute and injury resulting from its enactment is sufficient to convey standing to maintain this action.
FACTS
The following recitation of facts and procedural history come from the court's posttrial memorandum of decision dated September 2, 2003. "By applications dated June 23, 1995, the plaintiff, Contractor's Supply of Waterbury, LLC, applied to the defendant, Department of Environmental Protection (department), for permits to construct and operate two stationary sources of air pollution — a hot mix asphalt plant and a concrete batching plant — at property owned by the plaintiff and located at 157 East Aurora Street in Waterbury, Connecticut. The plaintiff sought these permits in accordance with General Statutes §§ 22a-174, 22a-186 and 22a-196, as well as other applicable agency regulations adopted thereunder. These statutes and regulations set forth the relevant procedures for the permit application and approval process with respect to hot-mix asphalt plants. Pursuant thereto, any applicant seeking to construct an asphalt plant must obtain a permit to construct from the commissioner of the department prior to commencing construction of the plant. See Regs., Connecticut State Agencies § 22a-174-3(a), (b) and (c). These regulations also authorize the commissioner to issue a conditional permit to operate the plant for one year, at which time the plant must satisfy all relevant emissions limitations prior to the issuance of a final operating permit. See Regs., Connecticut State Agencies § 22a-174-3(g).
The following with the parties' stipulation of facts filed August 4, 2004.
The permits pertaining to the concrete batching plant were subsequently issued by the department and are not at issue.
Particularly, the applicant is subject to Regulations of Connecticut State Agencies § 22a-174-3(a), (b), (c), (f) and (g), § 22a-174-23, § 22a-174-24 and § 22a-174-29.
"On November 5, 1996, the department issued Permit #151 to the plaintiff which consisted, inter alia, of a permit to construct a hot mix asphalt plant at the site with an expiration date of one year from the date of issuance. Also issued as part of Permit #151 was a conditional permit to operate the asphalt plant, the terms of which provided that all emission testing must be completed and results found acceptable within twelve months after issuance of the permit. This conditional permit to operate also contained an expiration date of one year from issuance and stipulated that a final permit to operate would not be issued until acceptable emission test results documenting compliance have been received and reviewed by the commissioner. A transmittal letter accompanying the conditional permit notified the plaintiff of certain regulatory provisions which required that any permit renewal applications must be filed within at least 120 days prior to the permit expiration date.
"In reliance on these permits, the plaintiff undertook construction on the plant in early 1997. During construction, it became evident to the plaintiff that it would be unable to complete site work, engineering and construction of the plant by November 5, 1997, the expiration date of the permit to construct. In a letter dated October 27, 1997, the plaintiff notified the department that it would be unable to meet the one year time limit and requested a one year extension of the permit to construct and the permit to conditionally operate the plant. In a subsequent letter dated November 10, 1997, the plaintiff proposed a new schedule of construction and site work with respect to the reissuance of Permit #151.
"On January 16, 1998, the plaintiff requested written confirmation from the department that its permit to construct remained valid. In the same communication, the plaintiff acknowledged that its conditional permit to operate the plant had expired. In response, the department confirmed that though the conditional permit to operate expired on November 5, 1997, the permit to construct was still valid and that the plaintiff could continue site work and construction. The department made this determination even though the plaintiff's application renewal request was dated October 27, 1997, only 9 days, not the 120 days required by statute, prior to the permit expiration date. In reliance on the department's January 16, 1998 assurance, the plaintiff continued site work and other related activities.
"On June 1, 1998, the legislature enacted what is now codified as General Statutes § 22a-196 which concerns the siting of asphalt batching facilities, including the one proposed by the plaintiff. This statute is in the nature of a zoning regulation and prohibits the location of asphalt batching facilities within `less than one-third of a mile from any hospital, school, area of critical environmental concern, watercourse or residential housing.' By its terms, this statute only applies to plants not already in operation as of December 31, 1997. The department determined that because the plaintiff's proposed plant was not in operation on December 31, 1997, it was included within the prohibition. The department further determined that despite [the fact] that the plaintiff already possessed a permit to construct, the plaintiff's application was no longer complete because the plant was located within one-third of a mile from a watercourse, the Naugatuck River, in violation of § 22a-196. Accordingly, the department administratively terminated the plaintiff's permit to construct and the ongoing proceedings regarding its application for a permit to operate. On or about June 27, 2000, the department issued a Notice of Tentative Determination to deny the plaintiff's application for a permit to construct and operate the asphalt plant on the ground that the facility's proposed location did not meet the requirements of § 22a-196."
Section 22a-196 provides: "No asphalt batching or continuous mix facility shall be located in an area which is less than one-third of a mile in linear distance from any hospital, nursing home, school, area of critical environmental concern, watercourse, or area occupied by residential housing. Such distance shall be measured from the outermost perimeter of such facility to the outermost point of such zones provided that any such facility in operation as of December 31, 1997, shall not be subject to the provisions of this section."
The operative complaint, dated May 30, 2003, sets forth two counts. The first count alleges that application of § 22a-196 to the plaintiff violates the ban on retroactive application of substantive statutes found at General Statutes § 55-3. The second count alleges that the statute lacks a rational basis and is therefore unconstitutional. The complaint seeks a declaratory judgment that the statute may not legally be applied to the plaintiff's construction and operation of the asphalt plant.
After a full trial, this court held that the plaintiff's claims lacked ripeness and thus were not justiciable because of General Statutes § 22a-174(n), which prohibited the department from issuing any permits for asphalt plants until July 1, 2004. The moratorium statute rendered any injury to the plaintiff from the enactment of § 22a-196 hypothetical. Accordingly, the court dismissed the action for lack of subject matter jurisdiction by memorandum of decision dated September 2, 2003. The plaintiff timely appealed. On July 7, 2004, the plaintiff withdrew the appeal and moved to open the judgment of dismissal because the moratorium created by § 22a-174(n) expired without renewal by the legislature. The court granted the motion to open judgment. Subsequently, the parties filed a joint stipulation of facts.
In trial briefs, the department argued that the plaintiff lacks standing to prosecute this action. The court did not reach that claim because of its determination that subject matter jurisdiction was lacking on other grounds. Since the opening of the judgment, the parties have filed supplemental briefs and presented oral argument on the standing issue only.
This decision reaches only the standing issue in deference to the parties' request that the court refrain from reaching the merits until both parties have had an opportunity to file supplemental briefs and present oral argument.
ISSUE
The present issue before this court is whether the plaintiff has standing to challenge the constitutionality of a statute limiting the siting of an asphalt plant, where the plaintiff previously possessed a permit to construct such a plant, began construction, and was denied the reissuance of the permit and the issuance of a permit to operate because of the enactment of the statute.
DISCUSSION, AND CONCLUSION
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . ."
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . .
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003).
The plaintiff claims that it has standing to maintain the action because it is classically aggrieved. The plaintiff argues that it possesses a specific personal interest in the constitutionality of § 22a-196 and that it has suffered the requisite specific injury because the statute operates to prevent the plaintiff from constructing and operating the asphalt plant. The plaintiff argues that it possesses standing regardless of whether its permit to construct was valid or expired when the statute became effective.
The plaintiff does not contend that it is statutorily aggrieved.
The plaintiff argues that it did possess a valid permit to construct, which constituted a protected property interest, and the statute operated to deprive it of that permit. The department counters that the permit had expired when the statute was enacted and the plaintiff therefore asks the required personal interest and injury to support standing. The plaintiff further argues that it has standing even if the permit was no longer valid, because an owner of land may challenge legislation limiting the use of the land even if the owner does not possess a valid permit for the desired use of the land.
The plaintiff relies heavily upon the case of Bombero v. Planning Zoning Commission, 40 Conn.App. 75, 669 A.2d 598 (1996), in which the court considered whether a property owner had standing to challenge the constitutionality of a zoning regulation. The plaintiff sought declaratory relief claiming that the regulation was unconstitutionally vague and thus rendered his property rights uncertain. Although the plaintiff had not applied to subdivide his land, the court nevertheless concluded that his interest in the statute was sufficient to convey standing for the purpose of seeking declaratory relief. The court noted that "[t]he requirement of standing in a declaratory judgment is often satisfied by the plaintiff's showing that he has applied for a permit, variance, subdivision or other such relief and, that he has been denied such relief." Id., 83. Moreover, the court noted that the Supreme Court has allowed declaratory judgment actions challenging the constitutionality of a statute even where the plaintiff has not first applied for relief under the challenged statute. Id., citing Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979); Karen v. East Haddam, 146 Conn. 720, 725, 155 A.2d 921 (1959). The court concluded that the "fundamental requirement" for attacking the constitutionality of legislation is that "the plaintiff must demonstrate that his interests are adversely affected in that a legal or equitable interest is uncertain or in danger of loss." Bombero v. Planning Zoning Commission, supra, 82. Applying the rule to the circumstances of that case, the Bombero court determined that the plaintiff was adversely affected by the zoning regulation because he owned property subject to the regulation and his use of that property was rendered uncertain by the regulation's enactment. The court stated, "As an owner of property that has the potential for subdivision, the plaintiff is entitled to be able to ascertain with reasonable certainty the validity of the adopted regulation and its effect on his rights as a property owner." Id., 88.
The present plaintiff is also the owner of property the use of which is adversely affected by the challenged legislation. Unlike the Bombero plaintiff, the plaintiff here has applied for necessary permits, with negative results. The plaintiff's interest in using the property to construct an asphalt plant is well established by the evidence of his financial expenditures and persistent pursuit of legal approval from the department. Moreover, the plaintiff's interest in using his property for that purpose indisputably has been adversely affected by the passage of the statute. The department tentatively denied the plaintiff's permit application because of the statute's requirements. As the Bombero court noted, "standing to bring a declaratory judgment action is not necessarily dependent on conclusive negative action taken against the plaintiff in a prior proceeding." Id., 83. Where, as here, the plaintiff challenges the constitutionality of a statute that has been applied to affect negatively the plaintiff's specific property rights, the plaintiff demonstrates sufficient interest and injury to justify standing.
The department contends that the plaintiff lacks standing because it does not hold a valid permit and, without such, it lacks a constitutionally protected property right. The department's contention that a valid permit is the only means by which to establish the requisite legal interest to establish standing, however, is inaccurate. The Bombero court made clear that standing may arise without a valid permit or even the denial of a permit. See also St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 184 A.2d 42 (1962) (permitting constitutional challenge to zoning regulations where plaintiff's special permit application was denied).
Recently, the Supreme Court considered a similar claim in City Recycling, Inc. v. State, 257 Conn. 429, 454-55, 778 A.2d 77 (2001). The department there also argued that the plaintiff could not challenge the constitutionality of a statute because no constitutionally protected interest had been impacted adversely by the statute. While acknowledging that the court had previously required such a showing in due process claims brought under 42 U.S.C. § 1983, the court held that "[t]here is no similar doctrine requiring a plaintiff to show that it clearly was entitled to a protectable property interest in order to trigger the federal or state equal protection guarantees." (Emphasis in original.) Id., 454. Thus, even if the department is correct in its contention that the plaintiff lacks a valid permit and, as a result, also lacks a constitutionally protected property interest, the plaintiff nevertheless maintains standing to challenge the constitutionality of the statute on equal protection grounds.
The plaintiff further argues that a due process claim not brought under 42 U.S.C. § 1983 should be subject to the same standing analysis applied to equal protection claims under City Recycling. Having determined that standing exists on other grounds, the court declines to consider this issue.
The plaintiff therefore satisfies the requirements for classical aggrievement. The plaintiff's legal interest in the use of its property is sufficiently specific and personal, and that interest has been sufficiently injured by the statute, to ensure that its challenge to the statute's constitutionality is "forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). The court need not determine whether the plaintiff possessed a valid permit at the time of the statute's enactment because the plaintiff's standing to bring this action does not depend upon possession of such a permit, as demonstrated by the Appellate Court's decision in Bombero. The plaintiff's clearly established interest in building an asphalt plant on its property suffered sufficient adverse impact by the enactment of § 22a-196 to permit the present challenge to the statute. The court therefore holds that the plaintiff possesses standing to maintain this action.
Freed, J.