Opinion
No. CV98-014652S
January 23, 2001
MEMORANDUM OF DECISION RE MOTION TO DISMISS #109
FACTUAL BACKGROUND
On June 16, 1998, the plaintiffs, James Jones, Rita Jones, Edward Iadarola, Dawn Iadarola, James W. Clark, Stephen J. Rimkus, John Rimkus and Mary Rimkus (collectively, the plaintiffs), filed a six count complaint against the defendants, Naugatuck Treatment Company (NTC), town of Naugatuck and the state of Connecticut Department of Environmental Protection (DEP), wherein the following facts are alleged. The plaintiffs are all residents of Naugatuck, Connecticut and all own property near the sewer and water control facility (facility) maintained by the town of Naugatuck and operated by NTC. The plaintiffs allege that for many years, they have noticed foul odors, vapors, fumes and other contaminants in the air which were produced at the facility. As a result of the defendants' conduct, the plaintiffs allege physical injuries and monetary losses. The plaintiffs are requesting compensatory damages, costs for this action, injunctive relief, attorneys fees pursuant to General Statutes §§ 22a-18 and 48-17b and such other relief that this court deems just and equitable.
On October 28, 1998, the plaintiffs filed an amended complaint. "[O]nce the question of lack of jurisdiction is raised, [i]t must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . ."Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). Further, "[w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. . . ." (Citations omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99 680 A.2d 1321 (1996). Accordingly, because NTC's motion to dismiss was filed on August 24, 1998, the original complaint is the operative complaint.
Specifically, in count one, the plaintiffs allege that the defendants' negligence in restricting the release of odors from the facility into the air created a nuisance. In count two, the plaintiffs allege that Naugatuck and NTC were negligent in their construction and maintenance of the facility which allowed for the noxious conditions to exist on the plaintiffs' properties. In count three, the plaintiffs allege that the continued release of odors and insects on the plaintiffs' properties constitutes a continuing trespass. In count four, the plaintiffs allege that through the conduct, including the release of odors and insects, the defendants have recklessly or intentionally violated the laws of the state of Connecticut. In count five, the plaintiffs allege that the defendants' actions threaten the public's trust in the air and other natural resources of the state of Connecticut with unreasonable pollution. Finally, in count six, the plaintiffs allege that NTC has concealed from the plaintiffs and the defendant municipality the full extent of its operation."
General Statutes § 22a-18 provides in relevant part: "(e) The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16G or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorney's fee."
General Statutes § 48-17b states "[t]he state court rendering a judgment for the plaintiff in an inverse condemnation proceeding brought against the state by the owner of real property, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding.
On August 24, 1998, NTC filed a motion to dismiss accompanied by a memorandum and two supporting affidavits which were attached to the DEP's motion to dismiss. On October 28, 1998, the plaintiffs filed their objection to NTC's motion to dismiss. On September 11, 2000, the plaintiffs filed a supplemental objection to the defendant's motion to dismiss. Thereafter, on September 29, 2000, NTC filed a reply memorandum in support of its motion to dismiss. NTC's motion to dismiss is now before the court.
On July 23, 1998, the DEP filed its motion to dismiss. Subsequently, on January 7, 1999, the plaintiffs withdrew the DEP as a defendant in this action. Accordingly, the DEP's motion to dismiss was never adjudicated.
The two affidavits, from two DEP employees, indicate that NTC has an application for a renewal discharge permit and two applications for renewal permits to construct modifications to the two incinerators at the sewage treatment plant pending before the DEP.
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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). A motion to dismiss may only be used to assert "(1) lack of jurisdiction over the subject matter of the complaint, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." "The motion to dismiss. . . admits all facts which are well pleaded, invokes the existing record, and must be decided upon that alone." (Internal quotation marks omitted.) Barde v. Board of Trustees of Regional Community Colleges, 207 Conn. 59, 62, 539 A.2d 1000 (1988); see also Knipple v. Viking Communications, 236 Conn. 602, 608, 674 A.2d 426 (1996). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999). "In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor. . . ." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000).
NTC first argues that the court should dismiss the plaintiffs' claims for injunctive relief against NTC because the DEP has primary jurisdiction over the subject matter of the plaintiffs' claims. In response, the plaintiffs argue that in light of General Statutes §§ 22a-16 and 22a-18(b), the doctrine of primary jurisdiction has no bearing on 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."
General Statutes § 22a-18(b) provides: "If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant's conduct, the court in its discretion may remand the parties to such proceedings. In so remanding the parties the court may grant temporary equitable relief where necessary for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction and the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record."
"Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Internal quotation marks omitted.) United States v. Western Pacific Railroad Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); see also Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 349, 363 A.2d 170 (1975). The doctrine of primary jurisdiction "cannot operate to divest a court of its ultimate jurisdiction. . . .[T]he threshold issue in determining whether [the] doctrine [of primary jurisdiction] applies is whether both the court and an agency have jurisdiction over the same issue." (Citations omitted; internal quotation marks omitted.)Second Injury Fund of the State Treasurer v. Lupachino, 45 Conn. App. 324, 348-49, 695 A.2d 1072 (1997). "[A] court may not refer a controversy within its jurisdiction to an agency under [the primary jurisdiction] doctrine where the agency itself lacks jurisdiction; the court's jurisdiction in such cases is exclusive." (Citations omitted.) Mazzola v. Southern New England Telephone Co., supra, 349.
In the present case, the plaintiffs seek a temporary injunction restraining and enjoining Naugatuck and NTC from operating NTC until such time as these defendants have taken appropriate measures to eliminate foul odors and insect infestation. The plaintiffs have the right to invoke the jurisdiction of this court for the purpose of protecting the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction. General Statutes § 22a-16. This court is under no obligation to refer this matter to the DEP pursuant to General Statutes § 22a-18(b). Therefore, this court has jurisdiction over the subject matter and the doctrine of primary jurisdiction does not bar this court from exercising jurisdiction over the plaintiffs' claim for injunctive relief.
NTC next argues that the plaintiffs' claims for monetary damages are not ripe for judicial review. "The justiciability of a claim is related to its ripeness." Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 517, 699 A.2d 310, rev'd on other grounds, 247 Conn. 196, 719 A.2d 465 (1997). "The justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 91, 713 A.2d 1267 (1998).
In the present case, in addition to seeking injunctive relief, the plaintiffs' complaint alleges various common-law theories of liability and seeks relief in the form of monetary damages for losses suffered as a result of foul odors that have emanated from NTC's plant for years. (See e.g., Complaint, count one, ¶¶ 13, 17-23, 27-28, 30, 32.) For example, the plaintiffs claim monetary damages for diminution in the value of their homes, deprivation of the use of their property and emotional distress. Based on the foregoing, the court finds that there is (1) an actual controversy between NTC and the plaintiffs; (2) NTC's and the plaintiffs' interests are adverse; (3) this matter is capable of being adjudicated by this court and; (4) a determination of this controversy in the plaintiffs' favor will result in practical relief for the plaintiffs. Mayer v. Biafore, Florek O'Neill, supra, 245 Conn. 91. Because the plaintiffs meet the four prong justiciability test, the plaintiffs' claims for monetary damages are ripe for judicial review.
NTC further argues that this action should be dismissed for lack of jurisdiction due to failure to exhaust administrative remedies. The plaintiffs argue, alternatively, that because the DEP cannot grant the relief they seek, they are not bound to exhaust administrative remedies. "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. . . . An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 467, 711 A.2d 1177 (1998). Moreover, "administrative relief cannot encompass a monetary award." Cummings v. Tripp, 204 Conn. 67, 80, 527 A.2d 230 (1987).
This argument was made in the plaintiff's opposition to the DEP's motion to dismiss. (p. 17.) The plaintiffs never addressed this issue in either of their memos in opposition to NTC's motion to dismiss.
As indicated above, in addition to seeking injunctive relief, the plaintiffs seek monetary compensation for the ongoing operation of the sewage treatment facility. The DEP is without authority to grant this sort of requested relief. Additionally, this court has the power to grant temporary or permanent equitable relief as required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction. General Statutes § 22a-18 (a). Accordingly, the plaintiffs are not required to seek injunctive relief solely from the DEP. Therefore, the plaintiffs are not required to exhaust administrative remedies for both their claims of monetary damages and injunctive relief. NTC also argues that the action should be dismissed because the plaintiffs lack standing to bring an action under General Statutes § 22a-16. "Standing concerns the legal right of an individual to set the machinery of the courts in operation."Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987). "Standing is not a technical rule intended to keep aggrieved parties out of court . . . . 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." Gay Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 463, 673 A.2d 484 (1996). "The requirements of justiciability and controversy 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." Id., 463-64.
NTC argues that Fish Unlimited v. Northeast Utilities, 254 Conn. 1, 756 A.2d 262 (2000) is controlling authority on this matter. In Fish Unlimited, the plaintiffs were seeking injunctive relief in an attempt to enjoin the restarting of a nuclear powered electric generating plant. The court found that "[t]he trial court . . . did not have subject matter jurisdiction to entertain the plaintiffs' application for injunctive relief." Id., 21. Because it has been submitted that the plaintiffs in the instant action are seeking more than injunctive relief, Fish Unlimited v. Northeast Utilities, supra, 254 Conn. 1, is not factually analogous and, therefore, not controlling.
The plaintiffs have standing to bring claims under General Statutes § 22a-16 The plaintiffs have sufficiently alleged a colorable claim of injury, both physical and monetary, as a result of operation of the sewage treatment plant by NTC. Accordingly, NTC's motion to dismiss is denied on this ground as well.
CONCLUSION
For all of the foregoing reasons, NTC's motion to dismiss is denied.
CHASE T. ROGERS, J.