Opinion
KNLCV175015464S
02-14-2019
Adam MCNIECE v. LOMBARDI GRAVEL & EXCAVATION, LLC
UNPUBLISHED OPINION
OPINION
Cosgrove, JTR
The defendant, Lombardi Gravel and Excavation, LLC (hereinafter defendant) has filed a motion to dismiss the plaintiff, Adam McNiece’s claim because he lacks standing to bring the claims. Previously this court had denied, without prejudice, an earlier motion to dismiss filed by the defendant. The current motion to dismiss is supported by an evidentiary affidavit regarding the permit history of the property in question. It is also supported by a partial transcript of testimony from multiple witnesses at a hearing that was held on the plaintiff’s motion for a temporary injunction. The hearing occurred before this court on August 7, 2018.
The sole count of this action directed against the defendant is count one. In count one the plaintiff alleges that the defendant has "destroyed Connecticut’s natural resources." Specifically he alleges that violations of state and local inland wetland regulations and a violations of the State Health Code. He further alleges the removal and destruction of wetlands without a permit. He further alleges the misuse of a dry hydrant system or drainage of the fire pond in which the dry hydrant is located. Finally the plaintiff alleges that the defendant failed to complete the approved site plan, thereby denigrating the wetlands buffer area.
The defendant has also filed a motion for summary judgment claiming there are no genuine issues of material fact that the defendant went through the permitting processes and received permits for the work complained of by the plaintiff. The defendant also supported this motion by transcript of testimony from multiple witnesses at a hearing that was held on the plaintiff’s motion for a temporary injunction in August of 2018. In addition to the motion for summary judgment, the defendant filed an affidavit regarding permits that were issued for the property in question.
The plaintiff opposes these motions. He asserts that he has standing to maintain these claims pursuant to the Connecticut Environmental Protection Act (CEPA), C.G.S. § 22a-16 et seq. He also claims standing under the First Amendment of the U.S. Constitution as it relates to identifying and correcting municipal corruption. The plaintiff has not filed any evidentiary material in his opposition to either the motion to dismiss or the motion for summary judgment. In his opposition papers he does make unpaginated references to the transcripts appended to the defendant’s motions. He seeks a trial on the merits.
To have standing under § 22a-16, a plaintiff must bring a "colorable claim of unreasonable pollution, impairment or destruction of the environment." (Emphasis omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432, 829 A.2d 801 (2003). A complaint does not sufficiently allege standing by merely reciting the provisions of § 22a-16; id., 433; it "must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." (Internal quotation marks omitted.) Id. "[A] claim that conduct is not properly authorized does not necessarily establish that the conduct causes unreasonable pollution under CEPA." Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 141, 836 A.2d 414 (2003). In City of Waterbury v. Town of Washington, 260 Conn. 506 (2002), the court stated "when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme." Id. at 557.
Standard for Review
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "[L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[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).
In this case, the plaintiff is representing himself in bringing his complaints to the court. Although the court could address the issues of standing raised by this motion to dismiss, it will postpone the addressing of those issues and proceed to address the motion for summary judgment. The motion for summary judgment will allow the court to assess whether there is any genuine issue of material facts and whether the defendant is entitled to judgment as a matter of law. The consideration of the evidentiary material that can be submitted in support of a motion for summary judgment gives the court a more sound basis for rendering a decision than interpreting the pleadings of a self-represented party as to the precise nature of the claims raised.
"When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Conboy v. State, 292 Conn. 642, 653 n.16. (2009).
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313 (2014). "A genuine issue of material fact exists if a reasonable [fact finder] could return a verdict for the nonmoving party." (Internal quotation marks omitted.) Johnson v. Walden University, 839 F.Supp.2d 518, 526 (D.Conn. 2011). "[I]t is the movant who has the burden of showing the nonexistence of any issue of fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20 (2013). Evidence, for the purposes of a summary judgment motion, means affidavits made upon personal knowledge of "such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Connecticut Practice Book Sec. 17-44. Further documents must be sworn or certified copies. Any other material submitted in support or opposition of the motion must demonstrate that the proffer would be admissible under some section of the Connecticut Code of Evidence.
The plaintiff’s complaint is difficult to parse and at times contradictory. On one hand he complains of work done by the defendant without appropriate permits and on the other hand he complains that the defendant failed to complete the work as required by the permits that were issued. In his brief, the plaintiff alleges in a conclusory manner a multitude of environmental complaints, e.g., dumping of animal wastes, clear cutting of inland wetland areas, draining of wetlands but does not provide any evidence of those claims.
A review of the transcripts and affidavits appended to the defendant’s motions provides a context to review the plaintiff’s claims. At the time of the commencement of this action the plaintiff owned residential rental property abutting the property identified as 2 Sachatello Road in Montville. The Sachatello Road lot was part of an industrial subdivision created by the defendant or a related entity over a period of time spanning from 2004 through 2014. At the time of the commencement of this complaint, the defendant had conveyed 2 Sachatello Road to the World Wide of Indoor Sports East, LLC. The 2 Sachatello Road lot was developed in accordance with a permit issued by Montville Planning and Zoning Commission, including a drainage swale was constructed along the northeastern edge of lot 2 as it abuts the property of the plaintiff. The drainage swale drained into a pond created pursuant to a permit issued by the Montville Inland Wetlands Commission in 2004. The pond is identified as a fire pond on a 2004 plan and as a stormwater pond/sedimentation basin in a 2014 plan. At some time after the installation of the drainage swale, the plaintiff complained that his dug well dried up and a new drilled well needed to be installed. No appeals were taken from the approvals granted by either the Inland Wetland Commission or the Planning and Zoning Commission.
The plaintiff did not own the abutting property in 2004.
The court is not persuaded that the State Health Code claims fall within the scope of complaints that can be addressed under CEPA. While the complaint is vague as to the location of where the plaintiff claims removal and destruction of wetlands occurred, the testimony provided by the plaintiff and John Lombardi at the temporary injunction hearing and the affidavit filed by John Lombardi clarified this issue. In 2004 the defendant received a permit to conduct regulated activities in inland wetlands create a fire suppression pond. The 2004 plan identified flagged wetlands WF# 2-1 through WF# 2-12 that would be removed and disturbed in the construction of the newly permitted fire suppression pond. These specific wetlands are not shown on a 2014 plan as a part of the Montville Planning and Zoning Commission special permit approval given to World Wide Indoor Sports East, LLC. In their place is the documented existence of the fire suppression pond that was authorized by the 2004 permit. The court finds that there is no genuine issue of material fact that the work done by the defendant in creating the fire suppression pond (which entailed the removal of some inland wetlands) was a properly permitted activity.
There is no dispute that the defendant has on multiple occasions removed some water from the fire suppression pond to use on other parts of its property. The fire suppression pond was never fully drained. The defendant supplied documentation it had received from the U.S. Army Corps of Engineers and the Town of Montville of inspections done of the fire pond area and the usage of the water. No violations of permits were cited. The testimony from the temporary injunction hearing identified additional information to put the removal of the water from the pond in context. At the time of the initial subdivision, there were no fire hydrants to service the property and the creation of the fire suppression pond was an essential part of the permit in 2004. Subsequently the town of East Lyme purchased additional water supply from the City of New London reservoir system that resulted in water lines and towers being installed through the defendant’s property. As a part of the municipal agreement, fire hydrant service was provided to the defendant’s subdivision so that a fire suppression pond was no longer necessary. Further, the defendant testified that water is no longer taken from the fire suppression pond/stormwater pond.
The court finds that these affidavits and testimony establish that the work performed by the defendant occurred within the inland wetland regulatory scheme. Any damage, destruction or drainage of inland wetlands was considered by the regulatory bodies and permitted. The compliance with development plans has been monitored by Federal and municipal authorities and no issues of compliance have been identified. There is no evidence demonstrated that the defendant has failed to comply with the permits it was issued. There is no evidence that there has been an "unreasonable pollution, impairment or destruction of the environment" as those words are used in C.G.S. § 22a-16.
The plaintiff’s complaint regarding Health Code violations as they relate to the well on his property are not persuasive in a CEPA action. The plaintiff offered testimony at the temporary injunction hearing that shortly after the drainage swale was installed in 2014 that the water supply to his rental house was impacted. This evidence, if credited, might have supported some sort of nuisance claim. Such a claim has not been brought.
Testimony of "Doc" Ballard at temporary injunction proceeding.
The claim of standing to expose alleged municipal corruption also does not support the claims asserted against this defendant.
The court finds there are no genuine issues of material fact and the defendant is entitled to a judgment in its favor on count one of the complaint. While the plaintiff may have standing to assert a CEPA claim, he has not established the colorable merit of his claim in his opposition to the motion for summary judgment.
The motion for summary judgment is granted. The motion to dismiss is rendered moot.