Opinion
No. CV 10 6005175
April 7, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 103) FACTS
On July 19, 2010, the plaintiffs, Kobyluck Brothers, LLC (Kobyluck) and Kobyluck Sand and Gravel, Inc. (Kobyluck Gravel), filed a complaint that appeals the decision of the defendant, the Salem planning and zoning commission (commission), which alleges the following facts. At some point in 2002, Kobyluck purchased a quarry, located at 290 Rattlesnake Road, Salem, Connecticut, that had an existing special exception permit for excavation. Kobyluck paid a $50 fee each year to the commission for renewal of the special permit between 2002 and 2007. On November 20, 2008, Kobyluck filed an application with the commission to renew the special permit and continue operating the stone quarry excavation business. On June 15, 2010, the commission held a hearing and granted the special permit application, subject to twelve conditions.
The commission approved the application, subject to the following conditions:
1 A revised site plan, acceptable to the Town Engineer, shall be submitted, to include the temporary sedimentation basins, with associated plan notes, on Phase II and Phase III as shown on the 2007 plan submitted to CTDEP, which is included as Exhibit B for this renewal.
Said revised site plan shall also include a revised restoration plan, showing existing and proposed contours and cross-sections. Should the revised plan not be submitted within 60 days of permit renewal, the renewal shall be void and the permit declared expired. Failure to meet this condition shall render the renewal void and the permit declared expired.
2. Revised performance bond amounts shall be as follows:
a. Phase I: $253,000
b. Phase II: $[80,800]
c. Phase III: $[41,500]
3. Revised hours of operation shall be Monday-Friday 8:00 AM-5:00 PM and shall not include Saturdays, Sundays, federally or state recognized holidays. Only equipment start up is permitted between the hours of 8:00 AM-9:00 AM, with full operation permitted from 9:00 AM-5:00 PM. No activity shall take place outside of approved hours of operation. The premises shall be vacated and gates locked no later than 5:00 PM. Failure to meet this condition may render the renewal void and the permit declared expired, if so voted by the Planning and Zoning Commission. Page 7 of 9 Salem Planning and Zoning Commission 6/15/10 Regular Meeting minutes.
4. Stockpiled material used to remediate Phase II shall remain in place and not be used for restoration of Phase I. Failure to meet this condition shall render the renewal void and the permit declared expired.
5. Approved equipment: one (1) jaw (primary) crusher, one (1) screener, one (1) stone cutter. The Commission's staff shall approve all equipment models prior to location on site. Failure to meet this condition shall render the renewal void and the permit declared expired.
6. The First Selectman shall be notified prior to any blasting. The applicant shall notify property owners within the area who are on its call list prior to a blast.
7. Use of the jaw (primary) crusher shall be permitted the day of, and one business day following, a blast, and solely for the purpose of removal of spoils. Failure to meet this condition shall render the renewal void and the permit declared expired.
8. Truck trips shall be limited to 16 trips per day of a gross vehicle weight not to exceed 75,000 pounds. Tandem trucks and tractor trailers are not permitted. Failure to meet this condition shall render the renewal void and the permit declared expired.
9. Truck slips or spreadsheets shall be provided to the Zoning Enforcement Officer on the first business day of each month for the previous month.
10. Processing of material is prohibited. Failure to meet this condition shall render the renewal void and the permit declared expired.
11. The operation shall proceed in accordance with the approved plan and the conditions of this permit approval. Failure to meet this condition shall render the renewal void and the permit declared expired.
12. Access to the site by Town officials for the purpose of compliance inspection shall not be unreasonably delayed. Failure to meet this condition shall render the renewal void and the permit declared expired. Commission's Memorandum in Support of Motion to Dismiss, Attachment B, Approval and Conditions of Special Exception Renewal Permit for Kobyluck Brothers, LLC, filed with the court on October 21, 2010.
The plaintiffs allege that they are aggrieved by the commission's decision because the commission acted illegally, arbitrarily and abused its discretion by imposing the conditions in the special permit. The plaintiffs allege that several of the conditions are contrary to the Salem zoning regulations, unreasonable and unfair. The plaintiffs further allege that the first condition, which requires them to submit a revised site plan and which renders the permit void and expired upon failure to comply with that condition, violates the plaintiffs' due process rights, is contrary to the General Statutes and is not authorized by the Salem zoning regulations.
On October 21, 2010, the commission filed a motion to dismiss the appeal. On December 27, 2010, the plaintiffs filed a memorandum in opposition to the motion to dismiss. The court heard this matter at short calendar on January 13, 2011.
DISCUSSION
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). "When 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." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"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). "In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006). Practical relief exists when, in the appeal of a land use commission's decision, the court may hold the commission's decision void if the special permit conditions are not permitted under the zoning regulations or the conditions violate the zoning regulations. See generally Hochberg v. Zoning Commission, 24 Conn.App. 526, 529, 589 A.2d 889 (1991).
In the present case, the commission argues that the plaintiffs violated the special permit's first condition, which required the plaintiffs to submit a revised site plan within sixty days of the permit's renewal date. The commission argues that this condition specified that failure to comply would render the permit void and expired. As the plaintiffs failed to submit a revised site plan within sixty days, the commission argues, the permit is void and expired and the issue before the court is moot. The commission points to the fact that the plaintiffs failed to file a motion to stay the proceedings under General Statutes § 8-8(h), which would have stayed the conditions on the special permit, and argues that the pending litigation does not toll the time limits imposed in zoning permits. Accordingly, when a party fails to obtain a stay or restraining order under § 8-8 and the time limit within the permit expires, the commission argues, the appeal is moot because the court cannot grant the plaintiffs any practical relief.
In response, the plaintiffs argue that the issues in the appeal are unresolved and unadjudicated and are therefore not moot because the subject of the appeal is whether the conditions imposed by the commission were illegal, arbitrary and abused the commission's discretion. They maintain that the special permit cannot be rendered moot due to the failure to comply with the conditions imposed, as the conditions are the very subject of the appeal. The plaintiffs further argue that the first condition, upon which the commission's motion to dismiss is based, is beyond the commission's authority and is not authorized by the Salem zoning regulations.
The plaintiffs also argue that the commission failed to file the motion to dismiss timely. This argument is incorrect because a motion to dismiss based on a lack of subject matter jurisdiction may be brought by a party at any time. Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). Accordingly, the commission's motion to dismiss was filed timely.
In support of its motion, the commission relies on Abel v. Planning Zoning Commission, 297 Conn. 414, 440, 998 A.2d 1149 (2010). This reliance is misplaced, as the court construed a different statute and the facts and issues are inapposite to those in the present case. In the page cited by the commission, the Abel court determined whether the plaintiffs were aggrieved under General Statutes § 8-8(a), which turned on whether the subdivision of the land was effective upon the commission's approval of the subdivision or when the litigation terminated. Abel v. Planning Zoning Commission, supra, 297 Conn. 436-37. The court interpreted General Statutes § 8-25(a), regarding subdivisions, and held that in an appeal from a subdivision approval, the subdivision of the land was not effective until the appeal had terminated. Id., 438. It distinguished that statute from appeals of a commission's approval of a permit under § 8-8, due to the specific wording in § 8-8(h), which states that appeals "shall not stay proceedings on the decision appealed from . . ." Id., 440.
The applicant had applied for a special permit to subdivide the property, which the commission approved. If the property remained undivided pending appeal, the plaintiffs owned property within a 100-foot radius of the subject parcel and they were statutorily aggrieved under General Statutes § 8-8(a)(1). If the subdivision plan was in effect, however, and the parcel was subdivided, the plaintiffs would not own property within the 100-foot radius of the subject parcel sought to be constructed upon, and would not have statutory standing. Abel v. Planning Zoning Commission, supra, 297 Conn. 436-37.
The Abel court did not make any holdings specific to § 8-8. It simply held that the commission's approval to subdivide the land, under § 8-25, was not effective until the appeals were terminated. The rule that may be taken from Abel is that the commission's approval of a special permit is not tolled and the approved use may begin immediately, subject to the conditions in the permit, unlike the approval to subdivide land when that approval is appealed. Nevertheless, the issue in the present motion is not whether the commission's approval with conditions was tolled upon appeal, but whether the plaintiffs' failure to comply with the condition requiring submission of a revised site plan renders the appeal moot in the absence of a stay, in light of the automatic expiration of the permit imposed in that condition.
The commission's reliance on ASL Associates v. Proch, Superior Court, judicial district of Hartford, Docket No. 370080 (December 21, 1990, Purtill, J.) ( 3 Conn. L. Rptr. 28), which held that time limits within land use permits are not tolled during appeals, is also misplaced because it was overruled by the Appellate Court in Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 809, 631 A.2d 347 (1993). In Fromer, the plaintiff, an abutting landowner, appealed the approval and extension of a wetlands permit by the New London conservation commission and inland wetlands agency. Id., 800. Relying on ASL Associates v. Proch, the plaintiff claimed, inter alia, that the permit had expired by the passage of time, and the one-year time limit within the permit was not tolled because the applicant failed to obtain a stay under § 8-8. Id., 805, 809. The court disagreed and held, inter alia, that "when a valid permit was issued to conduct a regulated activity within a specified time period and appeals from the granting of the necessary permits to conduct that activity were not resolved within the time period during which the activity was required to begin, that time period is tolled until all litigation is completed." Id., 802. It stated that, "[o]therwise, a lawful variance which was lawfully awarded can be frustrated by the delay inherent in an appeal." Id., 807.
The Fromer holding is not directly on point for the present case for four reasons. First, the holding in Fromer was limited to the facts of that case. See Fromer v. Two Hundred Post Associates, supra, 32 Conn.App. 802. Second, the reasoning from Fromer is not applicable because, in the present case, there is no need to protect the applicant from his own appeal, whereas the appeal in Fromer was brought by an abutting landowner against the land use agency and the applicant. Third, the reasoning from Fromer is not applicable because in Fromer, reversal would have required the applicant to restore the wetlands to its original state, whereas there is no such concern in the present case. Lastly, the Fromer holding was based in part on an absence in the statutory scheme of protection for the appellee developer (applicant), whereas in the present case, General Statutes § 8-8(h) provides a means for a statutory stay. Nevertheless, in the present case, it is not necessary to reach the issue of whether an automatic stay is in effect because, for the reasons discussed below, the appeal is not moot even in the absence of a stay.
A land use appeal is moot when the court cannot grant any practical relief to the plaintiff, such as when the land use permit at issue pertains to a specified period of time that has ended. In Arrigoni Enterprises, LLC v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 08 4009306 (February 23, 2010, Rubinow, J.), the Durham planning and zoning commission granted the applicant's special permit renewal application in August of 2008, and again in August of 2009. The plaintiff, an abutting landowner, appealed the commission's 2008 decision to renew the special permit, and requested the court to declare the permit null and void. The plaintiff did not appeal the 2009 permit renewal. The court found that the 2009 permit renewal was in effect and controlled the applicant's right to use the land, not the 2008 permit renewal. It dismissed the appeal as moot because no practical relief could be granted to the plaintiff, as sustaining the appeal for the 2008 permit renewal would have no effect on the use of the land and would not benefit the plaintiff.
In the present case, the court is able to grant practical relief to the plaintiffs because the special permit and its conditions are currently in effect, unlike the permit at issue in Arrigoni Enterprises, LLC v. Planning Zoning Commission. Here, the controversy arises out of the commission's conditions imposed in the special permit. The court may sustain the appeal if it determines that the commission's decision, in imposing the conditions, was illegal, arbitrary or if the commission abused its discretion. Sustaining the appeal could result in the reversal of the imposition of the conditions, which would relieve the plaintiffs of complying, for example, with the first condition regarding the sixty-day time limit to submit the revised site plan. Accordingly, as the plaintiffs could benefit from a successful appeal, the court can grant them practical relief, the appeal is not moot, and the motion to dismiss it is denied.
CT Page 8923