Opinion
No. CV-10-6002253-S
November 16, 2011
RULING ON THE DEFENDANT'S MOTION TO DISMISS (#110)
Defendant Town of Woodbury ("town") moves to dismiss the complaint brought by the plaintiff, Sharlene McEvoy. Defendant John R. Palumbo ("Palumbo") joins in the town's motion. The town asserts that the plaintiff lacks standing to assert and litigate the claims set forth in her complaint.
The plaintiff objects to the motion, claiming that she is statutorily and classically aggrieved and so has standing to proceed with this action. She also claims that the town is barred from objecting to her standing based on the doctrine of res judicata. The plaintiff also appears to argue that she has standing to enforce a conservation easement because the town has failed to do so.
At oral argument, the plaintiff withdrew the argument based on res judicata and substituted an argument that the town is barred from opposing the plaintiff's standing due to the doctrine of collateral estoppel.
This matter came before the court and was heard on November 10, 2011. The motion to dismiss is granted.
I FACTS
According to the complaint, both the plaintiff and Palumbo are owners of separate properties in the Town of Woodbury. Portions of both properties are allegedly subject to a conservation restriction. The plaintiff claims that the conservation restriction requires that land subject to the restriction must be kept in its natural state. According to the plaintiff, Palumbo has engaged in a practice of mowing a portion of his lawn that is subject to the restriction. In his answer to the complaint, Palumbo admits that he has field-mowed a portion of the conservation easement once per year.
In count one, the plaintiff claims that if Palumbo is not enjoined from mowing the portion of his property that is at issue, "the property will continue to be damaged by . . . Palumbo." In her second count, the plaintiff alleges that the town has ignored her requests to enforce the conservation easement. The plaintiff claims that the town has breached a fiduciary duty, and that "the land that is the subject of the conservation easement will suffer irreparable damage and harm" unless the court orders the town to "adhere to and enforce the letter and spirit of the conservation easement."
According to the Grant of Conservation Restriction (the "grant") attached to the plaintiff's complaint, Garwin D. Hardisty granted a conservation restriction to the town in June 1993. The land that is the subject of the restriction is located on Churchill Road in Woodbury. The plaintiff and Palumbo both own property on Churchill Road, and each of those properties is, in part, subject to the conservation restriction.
The grant contains a number of provisions relevant to the issue before the court. First, the sole grantee is the town. The grantor states that the grantee "may in a reasonable manner and at reasonable times enforce, by proceedings at law or in equity, the covenants hereinafter set forth." In seven numbered paragraphs, the grant sets forth multiple covenants which the grantor "makes . . . to the grantee . . . which shall run with and bind the protected property in perpetuity . . ." Among the covenants is a prohibition on the "cutting of trees or plants . . . or disturbance of change in the natural habitat in any manner . . . without express consent of the grantee . . . The grantor also reserved to himself four specific rights, including the right to trim vegetation, provided that such an action does not have a significant adverse impact upon the protected property. The grant further provides that the reserved rights are exercisable not only by the grantor but also "where appropriate, by all of those persons owning property interests derived by grant from the grantor." The parties agree that both the plaintiff and Palumbo own property interests derived by grant from the grantor. However, the reserved rights do not include a right to engage in enforcement action.
In a letter dated June 30, 2009, attached as an exhibit to Palumbo's answer and counterclaim, the town advised the plaintiff that, in July 2007, the Board of Selectman unanimously voted to give permission to Palumbo to remove invasive species and to mow within the conservation restriction subject to monitoring by town representatives. At oral argument, Palumbo represented that he had, in fact, received written permission from the town to mow within the conservation restriction. The plaintiff did not disagree with the latter representation, and, in fact, agreed that the Board of Selectman is statutorily authorized to act on behalf of the town.
II DISCUSSION
A motion to dismiss "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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). When a motion to dismiss raises a jurisdictional question, and "the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010). In the absence of standing, the court has no jurisdiction, as "no action in this case ever was commenced, as it was void ab initio." America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 489, 866 A.2d 695 (2005).
"[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).
CT Page 23748
A Statutory Aggrievement
All parties agree that the restriction at issue is a conservation restriction and so is governed by General Statutes § 47-42c, which provides that "conservation and preservation restrictions are interests in land and may be acquired by any governmental body or any charitable corporation or trust which has the power to acquire interests in land in the same manner as it may acquire other interests in land. Such restrictions may be enforced by injunction or proceedings in equity. The Attorney General may bring an action in the Superior Court to enforce the public interest in such restrictions." The plaintiff argues that, although the latter statute authorizes the Attorney General to bring an enforcement action in the Superior Court, it is silent on the question of whether a private citizen may do so.The plaintiff's argument disregards the doctrine of "expressio unius est exclusio alterius, which may be translated as the expression of one thing is the exclusion of another . . . [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 851, 937 A.2d 39 (2008). The legislature, by specifically naming only the Attorney General as the entity empowered to bring conservation enforcement actions in Superior Court, must be deemed to have deliberately excluded all others from bringing such an action. Cf., e.g., General Statutes § 22a-16 ("[t]he 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" in certain cases involving pollution).
The court concludes that General Statute § 47-42a does not empower the plaintiff to bring a conservation enforcement action. The plaintiff's claim that she is statutorily aggrieved fails.
B Classical Aggrievement
The plaintiff claims that she has standing because she is classically aggrieved. "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.) Windels v. Environmental Commission, 284 Conn. 268, 288, 933 A.2d 256 (2007).
Here, the plaintiff has not alleged that she has a specific, personal and legal interest in the subject matter of the controversy. The grant attached to her complaint sets forth reserved rights that she holds, but none of those reserved rights confers upon her the authority to bring an enforcement action. Further, she has not shown that conduct in which the town and Palumbo have allegedly engaged has specifically and injuriously affected her personal or legal interests. Instead, the plaintiff alleged, merely, that land owned by Palumbo — and not the plaintiff — will be damaged if Palumbo is not enjoined from mowing that land.
At oral argument, the plaintiff admitted that she has not alleged that she has a specific, personal or legal interest in this case, nor has she alleged an injury to her personal or legal interests. The plaintiff has failed to show that she is classically aggrieved.
The plaintiff attached an affidavit to her objection to the motion to dismiss, claiming that "if one area of the land bound by conservation easement is damaged, it has a ripple effect to the entire area and that includes my property." The plaintiff's speculative (at best) claim that her property will suffer from a "ripple effect to the entire area" is insufficient to meet the elements of classical aggrievement. There is no allegation in the complaint, or even in the plaintiff's affidavit, that if Palumbo mows his own property such conduct will damage his property, let alone the plaintiff's property.
C Collateral Estoppel
The plaintiff argues that the town is collaterally estopped from challenging her standing to bring this enforcement action because the town did not oppose her standing to bring a similar enforcement action in a prior case, Town of Woodbury and Sharlene McEvoy v. Sajda, Superior Court, judicial district of Litchfield, Docket No. CV 00 0083011 ("the first case"). The first case was resolved by stipulated judgment: The parties agree that the lead plaintiff in that case, the town of Woodbury, had standing to bring a conservation enforcement action. There was no evidence presented to the court that anyone challenged McEvoy's standing as co-plaintiff in the first case.
"Under Connecticut law, [c]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Hence, a party may assert the doctrine of collateral estoppel successfully when three requirements are met: [1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment . . . Whenever collateral estoppel is asserted . . . the court must make certain that there was a full and fair opportunity to litigate. The requirement of full and fair litigation ensures fairness, which is a crowning consideration in collateral estoppel cases . . . [I]f the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate." (Citations omitted; internal quotation marks omitted.) Gateway, Kelso Co. v. West Hartford No. 1, LLC, 126 Conn.App. 578, 583-84, 15 A.3d 635, cert. denied, 300 Conn. 929, 16 A.3d 703 (2011).
In the present case, the plaintiff failed to satisfy all three of prongs of the test that must be met in order to assert the doctrine of collateral estoppel. The plaintiff has not established, and the record does not reflect, that the question of her standing or, specifically, her alleged classical aggrievement, was fully and fairly litigated in the first action. Second, she has not established, and the record does not reflect, that the question of whether she was aggrieved or otherwise had standing to bring the first action was actually decided in the first action. Finally, it would not have been necessary to decide the question of the plaintiff's standing in the first action because it was not necessary to resolve that question in order to reach the stipulated judgment in that case. All parties agree that the town had standing to bring the first action. Therefore, it was irrelevant whether the plaintiff had standing to serve as co-plaintiff.
It is true that the stipulated judgment in the first case sets forth an agreement between the parties to that case that a portion of the stipulation could be enforced by either the town or McEvoy. However, such an agreement between the plaintiffs and defendants in the first case will not operate to confer standing on the plaintiff in this case. "[J]urisdiction cannot be waived, nor can it be conferred by agreement." Walsh v. Waldron Sons, 112 Conn. 579, 584, 153 A. 298 (1931).
Failure to meet any one of the three prongs required to invoke collateral estoppel would serve to prohibit the invocation of that doctrine. The plaintiff has failed to meet any of the three prongs, and so the doctrine of collateral estoppel has no application in this case and will not operate to confer standing on plaintiff.
III CONCLUSION
The plaintiff is a private citizen who does not hold the conservation restriction, she is not a member of the statutory class that has standing to enforce a conservation restriction, and she has not alleged the elements of classical aggrievement. The plaintiff has no standing to bring this action. See Burgess v. Breakell, Superior Court, judicial district of Litchfield, Docket No. CV 95 0068033 (August 7, 1995, Pickett, J.) ( 14 Conn. L. Rptr. 610). Only the town or the Attorney General can bring a conservation enforcement action regarding the grant at issue in this case. The plaintiff acknowledged at oral argument that she has not even elected to bring this matter to the attention of the Attorney General for any action he may wish to take. The plaintiff disregards the evidence that establishes that the grant gives the town discretion to enforce the conservation restriction. The plaintiff further ignores the evidence that Palumbo sought the town's permission to take the actions that are the subject of the complaint and that he received the town's written permission to take such actions.
In summary, the plaintiff seeks to arrogate unto herself the right to determine when and how the town should exercise the discretion conferred upon it in the grant. The plaintiff has no legal right to compel the town to defer to her views as to when and how to exercise its discretion, and she has no standing to assert and litigate the claims in her complaint. Since Palumbo has joined in the town's motion, the motion to dismiss is granted in favor of both defendants.