Opinion
No. CV 05-4010763
September 13, 2005
MEMORANDUM OF DECISION
FACTS
This declaratory judgment action arises out of an alleged approval by the defendant town of West Hartford of an ordinance and a resolution authorizing the issuance of approximately $48 million in general obligation municipal bonds and the approval of a "master agreement" to allow development of a proposed mixed use development known as Blue Back Square in West Hartford. (Complaint, ¶¶ 1-3.) The plaintiffs, Barbara Scully, Jasyn Sadler and Ellen Brassil, filed an eight-count complaint on April 12, 2005, alleging, inter alia, that the town exceeded its municipal economic development authority (count one); the town violated the town council resolution dated January 13, 2004 (count two); the town's approval of the ordinance authorizing the appropriation of $48,821,543 and its issuance of bonds in that amount were unconstitutional as pledges of its full faith and credit for the benefit of a private developer which are not incident to a valid public purpose (count three); the resolution and master agreement provide exclusive public privileges or emoluments to the developer in violation of the constitution of Connecticut, article first, § 1 and the town charter (count four); the town exceeded its authority in approving the resolution authorizing the execution of the master agreement that provides for a special services district that will exceed the powers granted to such districts by the General Statutes because the district will act as financing pass-through from the developer to the town and will incur an indebtedness that will be discharged after one year (count five); the town acted in an arbitrary manner in approving the ordinance authorizing the issuance of the general obligation bonds and the resolution authorizing the execution of the master agreement (count six); the town's authorization of the master agreement, which grants the exclusive power to dissolve the SSD to its members, thereby permitting those members to alter their obligation to repay those bonds by placing that burden on town taxpayers outside of the SSD limits without granting those taxpayers an opportunity to vote on that issue, "is fundamentally unfair and shocks the conscience, and is in violation of substantive due process and equal protection of the laws." (Count seven.) They further claim that the town council "exceeded its authority in amending Special Services District #36, creating Special Development Districts #113 and #114, and approving a development plan for these districts." (Count eight.)
The plaintiffs rely on classical aggrievement for standing. The defendants contest only the stature of Ellen Brassil who does not live in the immediate area. Since the plaintiffs had supplied evidence as to Scully and Sadler the court finds that they have standing. The evidence submitted on behalf of Brassil does not support standing and all counts are dismissed as to her.
On April 12, 2005, the private defendants filed a combined motion for summary judgment as to count one through seven of the complaint and a motion to dismiss count eight with exhibits. On June 3, 2005, the defendants filed memoranda in opposition with exhibits.
Although the defendants Blue Back Square, LLC; BBS Development, LLC; Raymond Road Associates, LLC; Hayes-Velhage Post 96 American Legion, Inc.; the Grody Company; and Anthony Donatelli, Jr. (private defendants) filed this motion, the public defendants joined in this motion and attended the hearing. Accordingly, references herein to the "defendants" refer to the public defendants and the private defendants.
Although the defendants filed a memorandum in support of their combined motion, a review of the file does not reveal a separate motion setting forth its grounds. Moreover, as the court noted during the hearing on the motion, the memorandum of law in support is unclear as to which type of motion it purports to be, as it refers only to a "dispositive motion." The memorandum consists of arguments relating to a motion for summary judgment as to counts one through seven and a motion to dismiss count eight. For the purposes of this memorandum, it is assumed that any procedural irregularities have not been contested and that the court will consider the memorandum as though it supports a proper motion for summary judgment as to counts one through seven and a motion to dismiss count eight.
DISCUSSION Motion for Summary Judgment as to Counts One through Seven
At the hearing on the motions, defense council conceded that although it has moved for summary judgment as to counts one though seven, most of the arguments relating to those counts are essentially motions to strike those counts, with references to documents outside of the pleadings, which would not be permitted with a motion to strike. See Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004) (motion to strike should be denied where the legal grounds are dependent upon underlying facts not alleged in plaintiff's pleadings). Recently, the Supreme Court held that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). Accordingly, if the defendants can establish that the complaint is legally insufficient and that such defects could not be cured by repleading, then the defendants' use of a motion for summary judgment to challenge the legal sufficiency of the complaint is proper.
The defendants have moved for summary judgment on legal sufficiency grounds as to certain allegations and on the grounds that no genuine issues of material fact exist as to other allegations. The defendants must present evidence to establish the absence of a genuine issue of fact only with respect to allegations where the evidence of a disputed material fact is in question. As any allegations for which evidence is not offered are challenged on legal sufficiency grounds, the court applies the standard of review of a motion to strike to such allegations and, accordingly, views such allegations in the light most favorable to the plaintiff. "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 400. The motion to strike standard is appropriately applied in the context of a challenge to the legal sufficiency of a pleading by a motion for summary judgment. See id., 403 (applying appellate standard for review of motion to strike in context of motion for summary judgment challenging legal sufficiency of a pleading).
The defendants move for summary judgment on the following grounds: as to count one, the town's actions are fully authorized by the West Hartford town charter and the General Statutes; as to count two, the council's resolution seeking independent advice did not create any legal rights and because the council received the advice it sought; as to count three, the town's use of its bonding authority comports with the town charter and the General Statutes; as to count four, the town's actions do not violate the state constitutional prohibition against "exclusive public emoluments or privileges"; as to count five, nothing in the agreement between the town and the special services district (SSD) requires the SSD to take actions not specifically authorized by the General Statutes; as to count six, the town's action bears a rational relationship to a legitimate public purpose; and as to count seven the payment obligations assumed by the SSD can be enforced against property within the district even if the SSD votes to dissolve itself. These counts will be addressed in turn.
Count One
In count one, the plaintiffs claim that the town exceeded its municipal economic development authority. They allege, in part, that the town authorized "the issuance of $48 million in [general obligation] [b]onds to pay for improvements to benefit Blue Back Square" and authorized "the execution of a Master Agreement with the Developer of Blue Back Square pursuant to which the Town will convey the Department of Education Building to the Developer at no cost to the Developer for purposes of the private development of Blue Back Square . . ." Complaint, ¶ 55. They further allege that the town failed to comply with certain requirements of Chapter 132 of the General Statutes, by failing to make a "formal determination or findings that the project was necessary to create new jobs, promote economic development, or revitalize a distressed town" and by failing to designate a development agency. Complaint, ¶ 56.
The defendants argue that the public defendants did not act beyond the scope of their authority. They argue that the town's actions are authorized by the General Statutes and the town charter of West Hartford. They maintain that chapter 132 of the General Statutes, which pertains to projects "conducted by a municipality for the assembly, improvement and disposition of land or buildings or both to be used principally for industrial or business purposes"; General Statutes § 8-187; is not applicable to the Blue Back Square project because the project does not involve assembly or taking of land by the town. They further argue that General Statutes § 7-148 and the West Hartford town charter grant authority to municipalities to use their property to support private economic development activities. They contend that the encouragement of private development is a public purpose and that municipalities are authorized to construct and maintain parking facilities, government buildings, public works and improvements.
General Statutes § 7-148 provides in relevant part, "(c) Powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes:
(3) Property. (A) . . . [H]old, . . . lease, sell, manage, transfer, release and convey such real . . . property or interest therein absolutely or in trust as the purposes of the municipality or any public use or purpose, including that of education, art, ornament, health, charity or amusement, cemeteries, parks or gardens, or the erection or maintenance of statues, monuments, buildings or other structures, or the encouragement of private commercial development, require. Any lease of real . . . property or any interest therein, either as lessee or lessor, may be for such term or any extensions thereof and upon such other terms and conditions as have been approved by the municipality . . ." (Emphasis added.)
The defendants offer evidence to dispute only one factual allegation of count one. They argue that the plaintiffs' allegation that the town transferred town property without consideration; see Complaint, ¶¶ 55 and 56; is incorrect and that the adequacy of such consideration is a question of policy for the town council, which is not subject to judicial review. In support of their assertion that the department of education building was transferred for consideration, they submitted a copy of certified deposition testimony of Robert Wienner, who testified that the price that the developer agreed to pay for that building was to be between 125 percent to 135 percent of the fair market value and that "their appraised number was well in excess of our estimation of the value of that building." Defendants' brief, exhibit 1, p. 2.
The defendants offer no explanation of exactly who this person is or what his relationship is with the parties, but the transcript includes references by the deponent to the developers as "we," implying that he is affiliated with them. See defendants' brief, exhibit 1, p. 1.
In opposition to the motion for summary judgment as to count one, the plaintiffs first argue that the public defendants exceeded their authority by entering into a joint venture with the private defendants to develop Blue Back Square. They contend that neither the West Hartford town charter nor the home rule statutes provide towns with the power to enter into joint ventures with private developers. They further argue that such a venture by the town with the developer would require the town to divide its loyalties between its co-venturer and its citizens, which would be improper. Moreover, they contend that whether there is a joint venture presents a mixed question of fact and law because the issue depends on motive and intent of the parties. They maintain that such an issue is inappropriate for summary judgment.
The plaintiffs further contend that the nature of the relationship between the parties is in dispute. In support of this contention, they have submitted an excerpt of a certified transcript of a public hearing on the project held on June 10, 2004. They argue that at that hearing, Ron Van Winkle, director of community services for West Hartford, characterized the town's participation as an "equity investor"; plaintiff's memorandum in opposition, p. 4; although the exhibit does not contain any portion of Ron Van Winkle's testimony, nor any reference to the term "equity investor." See plaintiffs' memorandum, exhibit A, p. 26. Moreover, count one of the complaint does not allege that the public and private defendants entered into a "joint venture." Accordingly, the existence of a factual dispute with regard to whether such a relationship existed is outside the scope of the pleadings and is irrelevant. "The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
The plaintiffs next argue that the public defendants exceeded their authority by contracting away the power to tax, which, they argue, is "an essential governmental function." They argue that the defendants negotiated a cap on the amount of the property tax that the town may impose on the properties within the special services district for twenty years. In support of this contention, they have submitted several documents, some of which have not been authenticated. These documents include, inter alia, an uncertified copy of an unsigned "MASTER AGREEMENT BY THE TOWN OF WEST HARTFORD AND BLUE BACK SQUARE, LLC" (the master agreement); plaintiffs' memorandum, exhibit C; an uncertified copy of a document entitled " An Ordinance Establishing a Special Services District For a Portion of West Hartford Center" (SSD ordinance); plaintiffs' memorandum, exhibit D; and an uncertified copy of an unsigned document entitled "Contract By and Between the Town of West Hartford and the West Hartford Center Special Services District" (SSD contract). Plaintiffs' memorandum, exhibit E. This court has previously declined to consider uncertified copies of documents in ruling upon motions to summary judgment. See, e.g., Durrant v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0828077 (March 17, 2005, Booth, J.) (court will not consider uncertified deposition transcripts in ruling upon motion for summary judgment); Krider v. Zimmerman, Superior Court, judicial district of New London at Norwich, Docket No CV 0107282 (December 5, 1996, Booth, J.) (same); Compass Bank for Savings v. Katz, Superior Court, judicial district of New London, Docket No. CV 0536458 (March 11, 1997, Booth, J.) (uncertified copies of documents do not constitute proof or documentary evidence and, accordingly, are not properly before the court and they may not be considered on a motion for summary judgment). Although these documents have not been authenticated and ordinarily would not be considered; see New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005), quoting Conn. Code Evid. § 9-1(a), commentary ("before a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .'"); the court will consider them in the interest of judicial economy because both parties rely on them and the defendants have not objected.
Among other sections, the plaintiffs refer to § 4.3 of the master agreement, in which subsection (d) refers to a levying "cap set forth in the SSD ordinance." The SSD ordinance sets forth the tax levying power of the SSD and the limitations thereof including a limit of $1,714,000 annually. Although these limitations may be adjusted, the aggregate amount of the levy upon residential and commercial land uses may only exceed $1,714,000 if the district is expanded. See plaintiffs' memorandum, exhibit D, § 161-28E. Pursuant to the ordinance, the town is "obliged to impose the recommended levy as a municipal levy and to collect the revenues accruing therefrom." Plaintiffs' memorandum, exhibit D, § 161-28H. The town may not impose any property tax on interests in real or personal property held by the district. Plaintiffs' memorandum, exhibit D, § 161-31.
SSD ordinance provides, inter alia, that the SSD shall have the power "to recommend to the Town Council of West Hartford the imposition of a levy upon all Taxable Interests in Real Estate within the District, the revenues from which may be used in carrying out any of the powers of the District." Plaintiff's memorandum, exhibit D, § 161-24. It further provides that "the powers of the District shall be exercised only to the extent which is reasonably necessary to maintain, repair, replenish or refurbish, or to replace substantially in kind . . . the Public Improvements then in existence within the District . . . and the levy recommended by the board shall be limited to such amount as is required to exercise those limited powers." Plaintiffs' memorandum, exhibit D, § 161-24. The SSD ordinance also provides that "[e]xcept as otherwise provided in [§ 161-28D of the ordinance], the recommended levy established by the Board for any Fiscal Year shall not exceed $1,714,000 and shall be subject to the further limitations that . . . The aggregate tax levy on all Taxable Interests in Real Estate constituting Commercial Land Uses shall not exceed $1,554,000 and the tax levy with respect to each individual Taxable Interest in Real Estate constituting a Commercial Land Use shall not exceed $3.54/square foot of gross building area; and . . . The aggregate tax levy on all Taxable Interests in Real Estate constituting Residential Land Uses shall not exceed $160,000 and the tax levy with respect to each individual Taxable Interest in Real Estate constituting a Residential Land Use shall not exceed $1.00/square foot of gross building area." Plaintiffs' memorandum, exhibit D, § 161-28D.
The defendants have met their burden of establishing the absence of a genuine issue of material fact as to the transfer of the board of education building. They offered uncontroverted evidence that this building was transferred for consideration in excess of its fair market value. See defendants' memorandum, exhibit 1. Moreover, the plaintiffs have offered no basis for their assertion that the transfer of town property to a private individual without consideration would be ultra vires.
The other grounds for summary judgment as to count one present purely legal issues, as they do not dispute any other allegation in that count. Because there is no genuine issue of material fact, the court must determine whether, on the basis of the undisputed allegations in the complaint, the defendant is entitled to judgment as a matter of law, that is, whether the alleged actions of the town were within its authority in authorizing the issuance of the general obligation bonds to pay for improvements which will benefit the Blue Back Square development or in authorizing the execution of the master agreement.
The court notes that "[t]he charter or statute by which the municipality is created is its organic act. Neither the corporation nor its officers can do any act, make any contract, or incur any liability not authorized thereby, or by the legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Thus, in the exercise of its powers, a municipal corporation is said to be confined to the circumference of those granted and may not travel beyond the scope of its charter or in excess of the granted authority." (Emphasis in original; internal quotation marks omitted.) Pillar v. Groton, 46 Conn.App. 305, 308, 699 A.2d 168, cert. denied, 243 Conn. 915 (1997). The court, therefore, must examine the relevant provisions of the General Statutes and West Hartford town charter to determine whether the plaintiff has alleged sufficient facts showing that the public defendants acted outside the scope of their authority.
The motion for summary judgment as to count one should be granted because even if all the allegations therein are proven, they do not establish that the town acted beyond the powers conferred on it by law. As the defendants argue, the town has the authority to "lease, sell . . . transfer, release and convey such real . . . property or interest therein . . . as the purposes of the municipality or any public use or purpose, including that of . . . the encouragement of private commercial development, require . . ." General Statutes § 7-148(c)(3)(A). The allegations in count one that the town acted beyond its authority by executing the master agreement pursuant to which the town will convey to the developer the department of education building, therefore, is without merit because the town has been granted such authority by the General Statutes. Further, [w]hen any municipality has made appropriations or incurred debts exceeding ten thousand dollars . . . it may issue either serial or term bonds or both . . ." General Statutes § 7-369.
With regard to count one, the plaintiffs attempt to raise issues that are unrelated to the allegations in that count in their effort to establish factual issues to preclude summary judgment. First, they argue that the "essential nature of the relationship between the Public Defendants and the Private Defendants is disputed." Plaintiffs' memorandum, p. 3. Count one did not allege that those defendants' relationship was inappropriate, but that its actions in authorizing the issuance of bonds to fund the project and in authorizing the execution of the master agreement allowing the transfer of the board of education building for less than its fair market value were ultra vires. They also argue that the public defendants acted outside their authority in contracting away the town's power to tax. Neither of these claims are contained in count one of the complaint and therefore are irrelevant to the motion for summary judgment as to that count. A plaintiff cannot expand its cause of action by adding allegations in its memorandum of law to defeat a motion for summary judgment. See Collum v. Chapin, supra, 40 Conn.App. 453 ("the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment").
The plaintiffs further contend that the defendants failed to follow the process required by chapter 132 of the General Statutes, thereby rendering their acts with respect to the Blue Back Square development ultra vires. This allegation is included in count one. Nevertheless, the allegations in the complaint do not establish that the Blue Back Square development falls with the class of municipal development activities governed by that chapter. General Statutes § 8-187(4) defines "development project" as "a project conducted by a municipality for the assembly, improvement and disposition of land or buildings or both to be used principally for industrial or business purposes and includes vacated commercial plants . . ." (Emphasis added.) Chapter 132, to which the definitions in § 8-187 apply, therefore contemplates use of a municipality's eminent domain power to acquire and use land for economic development projects. See Kelo v. New London, 268 Conn. 1, 16-17, 843 A.2d 500 (2004) ("General Statutes § 8-193 permits the development agency to acquire real property within the project area, including through the exercise of the eminent domain power"). The master agreement between the defendants does not call for the use of such power. See plaintiffs' memorandum, exhibit C (master agreement). Instead, the agreement "(i) provides for the conveyance from the Town to the Developer of certain properties to be included in the Project; (ii) requires the acquisition by the developer from third parties of certain other properties to be included in the project; and (iii) provides for the conveyance from the Developer to the Town of certain properties to be included in the Project and to be owned by the Town following the completion of certain Public improvements . . . thereon." Master agreement, p. 1. The project, therefore, is not governed by chapter 132 of the General Statutes and the actions by the public defendants, therefore, are not ultra vires for failure to adhere to its requirements. Because the allegations in the complaint, even if proven at trial, do not support a legally cognizable cause of action, and it is clear that the plaintiffs have no further facts to allege that would cure these legal defects, the defendants would be entitled to judgment as a matter of law on that count. Accordingly, the court grants the defendants' motion for summary judgment as to count one.
Count Two
In count two, the plaintiffs allege the following relevant facts: "On January 13, 2004 the Town adopted a resolution requiring the Town Manager to `retain the services of independent experts to analyze the potential impact of Blue Back Square . . . including, but not limited to an economic analysis, a traffic analysis and a parking analysis.'" (Emphasis in original.) Complaint, ¶ 59. They further allege that "[n]o independent traffic, economic, or parking analysis was undertaken"; complaint, ¶ 61; "[n]o analysis, independent or otherwise, was undertaken concerning the cost of municipal services to Blue Back Square and all related public infrastructure intended to benefit the developer"; complaint, ¶ 62; and that "[n]o analysis, independent or otherwise, was undertaken concerning the loss of tax revenue from a transfer of business activity and sales within West Hartford." Complaint, ¶ 63. They allege that "[t]he Town thereby violated the Town Council resolution of January 13, 2004, and its further actions approving the resolution and ordinance providing public subsidies to Blue Back Square in the form of general obligation bonds and public property in the absence of the independent analysis required by the resolution are null and void[.]" Complaint, ¶ 64.
The defendants argue that summary judgment should be granted as to count two for two reasons. First, they argue that even if the allegations that the town failed to follow the resolution are true, the resolution is not binding on the town, and the defendants, therefore, are entitled to judgment as a matter of law. Second, they maintain that the town adhered to the resolution and received the analysis that it sought.
This issue has already been addressed in a decision concerning four related actions, Sadler v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 4001119 (April 22, 2005, Booth, J.); Sadler v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 4002125 (April 22, 2005, Booth, J.); Sadler v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 4001448 (April 22, 2005, Booth, J.); Sadler v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 4001388 (April 22, 2005, Booth, J.). In the decision in those cases, this court held that "even if the municipal defendants had not followed the recommendations in the resolution issued by the town council that it retain the services of independent experts to analyze the potential impact of Blue Back Square . . . that resolution does not govern the actions of the commission because only a municipal zoning agency may establish or amend zoning regulations. See General Statutes §§ 8-2(a) and 8-3(b). Further, the town council, acting in its legislative capacity, may not impose binding regulatory measures on itself by resolution. See Morris v. Newington, 36 Conn.Sup. 74, 80, 411 A.2d 939 (1979), aff'd, 180 Conn. 89, 428 A.2d 342 (1980) ('[r]egulatory measures enacted by a city council pursuant to the police power must be in the form of an ordinance, while matters such as public works may originate with a resolution'). The municipal defendants' decisions, therefore, would not be invalid even if it had failed to abide by the resolution." (Citation omitted; internal quotation marks omitted.) For the reasons stated in the Sadler decisions, the allegations in count two of the complaint, even if proved at trial, would not entitle the plaintiffs to a judgment in their favor. Further, it is clear that the legal insufficiency of this count could not be cured by repleading. Moreover, it is not necessary for the court to determine whether the public defendants complied with the resolution because it is not binding on them. Accordingly, as no material facts with regard to this count are at issue and because the defendants are entitled to judgment as a matter of law, the court grants the defendants' motion for summary judgment as to count two
Count Three
In count three, the plaintiffs allege, inter alia, that the town's issuance of general obligation bonds in the amount of $48,821,543 "was unconstitutional and exceeded the Town's authority and, therefore, is null and void"; complaint, ¶ 70; because "the Town Charter does not authorize the [t]own to issue [general obligation] [b]onds for a private development project." Complaint, ¶ 69.
In support of the defendants' motion for summary judgment, the defendants argue that the town's use of its bonding authority comports with its town charter and the General Statutes. They contend that General Statutes § 7-148(c)(3)(A) "clearly identifies `the encouragement of private commercial development' as a `public use or purpose.'" Defendants' memorandum, p. 12. They also reiterate their arguments set forth with regard to count one that the town had the authority to issue the general obligation bonds. They further note that the town has the authority under the General Statutes to create and maintain the types of facilities for which the bonds will raise financing. See General Statutes § 7-148(c)(6)(A)(i) (granting municipalities the power to "(i) [e]stablish, lay out, construct, reconstruct, alter, maintain, repair, control and operate [ inter alia] . . . libraries, parks, playgrounds . . . recreation places . . . public gardens, markets . . . parking lots and other off-street parking facilities, and any and all buildings or facilities necessary or convenient for carrying on the government of the municipality . . ." and "(ii) (granting municipalities the power to [c]reate, provide for, construct, regulate and maintain all things in the nature of public works and improvements").
The plaintiffs contend that any power conferred upon a municipality may be exercised only in furtherance of a public purpose and that the bonds would be issued primarily to benefit a private developer. They contend that a genuine issue of fact exists with regard to whether the bonds would be issued primarily for a public or a private purpose. They argue that the bonds will finance various aspects of a private development, such as plazas, walkways, benches and parking garages. They argue that these are "critical components of private commercial/retail developments and are found in all shopping malls"; plaintiff's memorandum, p. 13; and that chapter 177, § 32, of the West Hartford zoning code requires developers to provide off-street parking. To establish the existence of a genuine issue of material fact, they rely on affidavits of Jonathan Macy and Robert Doty to show that the use of general obligation bonds to help finance a private commercial development is unusual, that the private defendants will receive the benefit of the public defendants' enhanced credit rating and that the use of bonds in this manner will have a negative impact on the citizens of West Hartford. Plaintiffs' memorandum, Exhibits N, ¶¶ 20, 23-28, and exhibit R, ¶¶ 12-13, 22-23, 27-31, 35. They also rely on an affidavit of Thomas Muller to show that the issuance of the bonds would violate the public defendants' policy regarding debt ratios, would constrain the public defendants' ability to borrow in the future and would present a financial risk. Plaintiffs' memorandum, Exhibit O, ¶¶ 15, 17-18, 21-27. Even if these affidavits establish these facts, however, these facts would not be sufficient to establish a genuine issue of material fact. The statements in these affidavits do not raise an issue as to whether the bonds would be issued for a public purpose. As the defendants note, the encouragement of private development is a valid public purpose recognized in General Statutes § 7-148(c)(3)(A). The fact that the private defendants may benefit from the public defendants' issuance of bonds to finance parts of the development, therefore, does not render those actions unlawful.
Moreover, the master agreement provides that the bonds would be issued to pay for "Public Development Costs," estimated costs to design and construct additions to the public library, the town hall and the police station as well as other expenses associated with the bonds. Plaintiffs' memorandum, exhibit C, p. 26. The master agreement defines the tern "Public Development Costs" as "the aggregate cost incurred by the Developer to acquire the North Garage Parcel . . . to develop, construct, equip, complete, finance and install the [south garage, the north garage, the site improvements such as sidewalks, roadways, trash receptacles, planting pots, planters and plantings, bike racks, lighting fixtures, landscaping, sprinklers, bollards, benches and other public seating, decorative improvements, retaining walls and other streetscape improvements and utilities, the library addition, the town hall addition, the police station addition, and the town park]." Plaintiffs' memorandum, exhibit C, pp. 15-17. The revenue generated by the issuance of the bonds, therefore, is to be used for public improvements as well as the encouragement of private development, both of which are valid public purposes under General Statutes § 7-148. The defendants, therefore, have met their burden of establishing the absence of a genuine issue of material fact with regard to whether the issuance of the bonds would be incident to a valid public purpose and that they are entitled to judgment as a matter of law. Accordingly, the court grants the defendants' motion for summary judgment as to count three.
Count Four
In count four, the plaintiffs allege that the "resolution authorizing the execution of the master agreement and the ordinance authorizing the issuance of [general obligation] [b]onds provides exclusive public privileges to the Developer." Complaint, ¶ 72. They further allege that the "conveyance of public property to the Developer for the purpose of converting the Board of Education building from public to private use serves the exclusive private benefit of the Developer." Complaint, ¶ 73. They claim that "[t]hese benefits constitute exclusive public emoluments or privileges in violation of the constitution of Connecticut, article first, § 1, and are ultra vires as not authorized by the Town's Charter." (Emphasis in original.) Complaint, ¶ 74.
As already discussed with regard to count one, the defendant has submitted uncontroverted evidence that the board of education building was to be sold to the developer for an amount in excess of its fair market value. Defendants' memorandum, exhibit 1, p. 2. With regard to count four, therefore, the court needs only to consider whether the "resolution authorizing the execution of the master agreement and the ordinance authorizing the issuance of [general obligation] [b]onds provides exclusive public privileges to the Developer"; complaint, ¶ 72; "constitute exclusive public emoluments or privileges in violation of the constitution of Connecticut, article first, § 1, and are ultra vires as not authorized by the Town's Charter." (Emphasis in original.) Complaint, ¶ 74.
With regard to these allegations, the court has already determined, in its decision regarding count three, that the town has the authority to issue general obligation bonds to fund public improvements and for the encouragement of private development pursuant to General Statutes §§ 7-369 and 7-148. With regard to count four, the court must determine whether the town's actions constitute exclusive public emoluments or privileges in violation of the state constitution.
The constitution of Connecticut, article first, § 1, provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." The defendants note that to establish a violation of the emoluments clause, the plaintiffs must "show beyond a reasonable doubt that the legislation directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby." (Internal quotation marks omitted.) Wilson v. Connecticut Product Development Corp., 167 Conn. 111, 115, 355 A.2d 72 (1974). In the context of constitutional challenges to legislation, the Supreme Court has "construed the provision of article first, § 1 prohibiting `exclusive public emoluments or privileges' to apply to legislation preferring certain individuals over others when wholly unrelated to the public interest. No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual." (Emphasis added; internal quotation marks omitted.) Merly v. State, 211 Conn. 199, 212-13, 558 A.2d 977 (1989). Accordingly, if the defendants establish that the public defendants' actions would be in furtherance of any public purpose, the defendants would be entitled to judgment as a matter of law.
In support of their contention that the resolution authorizing the execution of the master agreement and the ordinance authorizing the issuance of the bonds were in furtherance of a public purpose, the defendants argue that Blue Back square will accomplish several long-standing goals of West Hartford, e.g., expansion of the public library, improve an area of the downtown center, and to increase the grand list without cost to the taxpayers. In support of this contention, they have submitted an affidavit of Barry Feldman, town manager, dated December 27, 2004. In this affidavit, Feldman states, inter alia, that "[for several decades, the town has had the goal of developing the southeast area of West Hartford Center . . . The Town Hall, Board of Education, Noah Webster Public Library and Police Station are located in this area of West Hartford Center." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 5. "In addition, for several decades the Town has had the goal of consolidating the Board of Education and the Town administration in one building at the Town Hall for greater efficiency." Defendants' memorandum, Exhibit 3, Feldman affidavit, 12/27/04, ¶ 6. "Expansion of the Noah Webster public library to meet twenty first century needs has also been in the planning stages for almost ten years." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 7. The affidavit further states, "[t]he Town will issue its general obligation bonds in the amount of [$48,800,000] ("Bonds") to fund construction of the public improvements in Blue Back Square. These public improvements will include renovation of the Town Hall; relocation of the Board of Education from its current location north of Memorial Road to the Town Hall; renovation and expansion of the public library; construction of two new public parking garages (the north and south garages); construction of a small retail area adjacent to the library; establishment of a new public plaza space to be know as Blue Back Square; creation of new pedestrian walkways; and construction of extensive street and infrastructure improvements including a new street, lighting, utilities, landscaping and sidewalks." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 14. "The development of Blue Back Square will enable the Town to meet its longtime goals of expanding the public library; combining the Board of Education with its administrative offices at the Town Hall; and developing the southeast area of the Center to provide new economic vitality to that area and the Center." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 15. This uncontradicted evidence establishes that the public defendants' actions would serve the public welfare and, consequently, would not violate the constitution of Connecticut, article first, § 1.
Moreover, the court has already determined, with regard to count three of the complaint, that the undisputed evidence establishes that the issuance of the general obligation bonds would be in furtherance of public purposes, specifically the acquisition and improvement of public property and the encouragement of private development. Accordingly, as the defendants are entitled to judgment as a matter of law as to count four, the court grants the defendants' motion for summary judgment as to that count.
Count Five
In count five, the plaintiffs allege that the master agreement is null and void because it provides for a special services district that would exceed the powers granted to such districts by the General Statutes. They present several allegations in support of this claim. They allege that the district would "act as a financing pass-through from the developer to the Town"; (internal quotation marks omitted) complaint, ¶ 78; and that it "will be liable for paying approximately $3.6 million annually of the [general obligation] bond debt through revenues generated by the parking garages and a special levy." Complaint, ¶ 79. They further allege that the "term of the bonds is twenty years." Complaint, ¶ 80. They allege that General Statutes § 7-339n requires special services districts to discharge any indebtedness within one year from when the debt is incurred and that the bond debt which the district will assume liability to pay, will not be discharged within one year. Complaint, ¶ 81-82. Finally, the plaintiffs allege that the public improvements to be constructed by the developer will be paid for by the SSD through the issuance of bonds that will be repaid by the SSD and that an SSD has no authority to pay for public improvements that it will not construct, own, operate or maintain. Complaint, ¶ 83.
The defendants argue that the "Municipal Services Agreement" between the town and the special services district does not require the district to take actions not specifically authorized by the General Statutes. They contend that this agreement requires the town to provide various administrative services to the district and licenses the district to operate and maintain the parking facilities and other public improvements owned by the town. They further argue that in exchange for these privileges, the district has agreed to make certain payments to the town, which will offset the town's bond debt. It argues that the district, therefore, has not assumed direct liability on the bond debt, but that its payments to the town, pursuant to the municipal services agreement, will merely have the effect of offsetting the town's burden to pay that debt.
In support of these arguments, the defendants rely on the "Municipal Services Agreement." Although the court finds no record that a document bearing this title has been submitted by the parties, a review of the file reveals that the document to which the defendants refer is the document entitled "Contract By and Between the Town of West Hartford and the West Hartford Center Special Services District." Plaintiffs' memorandum, exhibit E; defendants' memorandum, exhibit 3. Both the plaintiffs and the defendants have submitted a copy of this document. The copy submitted by the defendants also includes a cover page captioned " EXHIBIT II," "FORM OF SSD PARKING FACILITIES LICENSE/SERVICE AGREEMENT." In Feldman's affidavit dated December 27, 2004, Feldman refers to this agreement as the "Municipal Services Agreement." Plaintiffs' memorandum, exhibit 3, Feldman affidavit 12/27/04, ¶ 18. Although this document is unsigned and unauthenticated, as discussed above, the court will consider it in the interest of judicial economy because both parties rely on it; see, e.g., defendants' memorandum, p. 15; plaintiffs' memorandum, pp. 20-21, p. 20 n. 12; and the plaintiffs have not objected.
The "Municipal Services Agreement" provides, inter alia, that the district will agree "[t]o ensure . . . that its annual levy, together with the fees and other revenues which are generated by it, are adequate to make payment to the Town of an amount sufficient to pay debt service on the bonds issued pursuant to the Blue Back Square Public Improvements Bond Ordinance as it becomes due . . ." Plaintiffs' memorandum, exhibit 3, pp. 3-4, ¶ 5d. It further provides that "[i]t is expressly agreed by and between the parties that the Town has committed, through its issuance of said bonds, to a long-term financial obligation which is anticipated to be repaid through the consideration received by it through this Agreement . . ." (Emphasis added.) Defendants' memorandum, exhibit 3, p. 4, ¶ 6. This document, therefore, establishes that pursuant to this agreement, if entered into, the special services district would be required to pay funds to the town, which, in turn, will be obligated to repay the bonds. The district would have no direct, independent duty to repay the bond debt under this agreement.
The plaintiffs argue that summary judgment should be denied as to count five for three reasons. They contend that "[t]here are material facts which demonstrate that, for purposes of the following reasons, the SSD is not a valid governmental entity: (1) the district will undertake a long-term financial obligation in violation of Connecticut General Statutes § 7-339n(d); (2) the district will impose a levy on property owners that is not proportionate to the benefit derived by those property owners from the operation of the district in violation of Connecticut General Statutes § 7-339r; and (3) the SSD does not constitute a proper independent body corporate and politic. The existence of these facts render summary judgment inappropriate." (Emphasis in original.) Plaintiffs' memorandum, p. 19.
At the outset, the court notes that count five of the complaint does not allege that the district will impose a levy on property owners that is not proportionate to the benefit derived by them or that the district does not constitute a proper independent body corporate and politic. Accordingly, any issues of fact relating to these contentions are outside the scope of the pleadings and therefore are irrelevant and insufficient to establish a genuine issue of material fact. See Collum v. Chapin, supra, 40 Conn.App. 453 ("the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment").
With regard to the plaintiffs' first argument, that "the district will undertake a long-term financial obligation in violation of . . . General Statutes § 7-339n(d)," the court notes that § 7-339n provides in relevant part, "the ordinance establishing . . . a [special services] district shall confer upon such district such of the following powers as are provided in the ordinance . . . (d) to borrow money, provided any obligation incurred for this purpose shall be discharged not more than one year after it was incurred . . ." (Emphasis added.) That section does not provide, as the plaintiffs represent, that such districts may not "undertake a long-term financial obligation," but merely that it shall not borrow money if the obligation to repay that money would remain outstanding for more than one year. The municipal services agreement contains no indication that the district would borrow money. Moreover, General Statutes § 7-339n(c) explicitly grants to special services districts the power to contract, without limitation on financial obligations incurred in connection therewith.
The plaintiffs argue that the district will borrow $48.8 million from the town, to be repaid beyond one year, in violation of § 7-339n. In support, they rely on various references to the general obligation bonds in the SSD ordinance. They contend that § 161-30(B) of the SSD ordinance, which pertains to dissolution of the district, "references the [municipal services] [a]greement and, therefore, its obligation to service the GO [b]onds by further defining the SSD obligations as any obligation undertaken pursuant to any `municipal services agreements, contracts or other agreements between the District and the Town of West Hartford . . .'" Plaintiffs' memorandum, p. 20. Nevertheless, as discussed above, the municipal services agreement does not contain requirement by the district to service the bond debt directly or to otherwise repay any money borrowed by the district. The municipal services agreement establishes the fact that the repayment of the bonds would remain an obligation of the town, not an obligation of the special services district.
The plaintiffs also rely on the deposition testimony of Feldman, Wienner, and Patrick Alair, deputy corporation council for West Hartford, testimony of Alair from the public hearing on the zoning applications held on June 16, 2004, as well as other documents, which, they contend, show that the purpose of the SSD is to pay the town's bond debt. Nevertheless, they refer to no specific statement of these witnesses to dispute the facts established by the defendants. For example, they refer generally to statements of Feldman that he first conceived of the idea for a special services district and that it would serve to pay off the bonds. At Feldman's deposition, he stated, in part, that the district "allows the creation of a district where the owners of property would pay a hundred percent of their real estate and real property taxes, and in addition, a sur tax is then charged to those properties that would be used, in this case, to pay off debt." Plaintiffs' memorandum, exhibit P, p. 64. They also refer to a statement of Wienner, who stated that "[t]he SSD and the revenue GO bonds have virtually nothing to do with each other . . . One's a mechanism to pay the other, but they're not related in any other way." Plaintiffs' memorandum, exhibit G, p. 92. Such statements are insufficient to establish a genuine issue of material fact because they do not show that the district would incur a long-term obligation for the purpose of borrowing money.
For these reasons, the court finds that the defendants have met their burden of establishing the absence of a genuine issue of material fact with respect to count five. Because the plaintiff's claim in count five is premised on the allegation that the district will exceed the powers granted to such districts and the defendants have established that it will not, the defendants are entitled to judgment as a matter of law. Accordingly, the court grants the defendants' motion for summary judgment as to count five.
Count Six
In count six, the plaintiffs allege that the public defendants acted in an arbitrary and capricious manner in their approval of the ordinance authorizing the issuance of the general obligation bonds and the resolution authorizing execution of the master agreement because the town council relied on the advice of advisers who had a vested interest in the proposed transaction; failed to make "findings based on reasonable and identifiable facts, regarding whether the proposed subsidy of Blue Back Square served legitimate public purposes"; "undertook no objective analysis, based on reasonable and identifiable facts, as to the costs of the proposed subsidy of Blue Back Square on residents, taxpayers and businesses in West Hartford, including the risks to the Town from the proposed financing arrangement"; complaint, ¶ 89; and ignored the town council's debt ratio limits and "severely constrained the Town's ability to borrow for needed public projects in the future." Complaint, ¶ 91. They further allege that neither the town "nor any other co-applicant" analyzed the "cost of public services or the cost of loss of revenue from the transfer of business activity." Complaint, ¶ 90. They also allege that in advocating the Blue Back Square project, in acting as a co-applicant for the development approvals for Blue Back Square, and in being a party to the master agreement, the town's actions "were private in nature and did not primarily serve a public purpose." Complaint, ¶ 92. They claim that these actions establish that the public defendants' actions were arbitrary and capricious, lacked a rational basis, and therefore should be declared unlawful and void. Complaint, ¶ 93.
The defendants contend that they are entitled to judgment as a matter of law because the town's action bears a rational relationship to a legitimate public purpose. They argue that the town's actions satisfy the rational basis test applied in Bhinder v. Sun Co., 263 Conn. 358, 374-75, 819 A.2d 822 (2003) and in Donahue v. Southington, 259 Conn. 783, 795-96, 792 A.2d 76 (2002). In those cases, the Supreme Court applied the rational basis test to determine whether the retroactive application of a statute would violate the due process clauses of the federal and state constitutions and whether a statute violates the equal protection clauses of the federal and state constitutions, respectively.
The plaintiffs' claims in count six are not based entirely on their allegation that the town's actions lacked a rational basis, but are also predicated on allegations that the town acted arbitrarily and capriciously. Relying on United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969), the plaintiffs contend that any action that is unreasonable or arbitrary is void. They further argue that the standard set forth in Donahue v. Southington, supra, 259 Conn. 796, that is, "whether this court can conceive of a rational basis for sustaining the legislation"; (emphasis in original); is not applicable, noting that Donahue applied that test in the context of an equal protection challenge. Relying on Luce v. United Technologies Corp., 247 Conn. 126, 143-44, 717 A.2d 747 (1998), they contend that the court's function in the present context is to determine "whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way." (Internal quotation marks omitted.)
The court notes, however, that both of these cases apply the rational basis test in the same context, that is, in the context of a challenge to a statute on the basis of violations of the equal protection clauses of the federal and state constitutions. The plaintiffs offer no justification for applying Luce rather than Donahue v. Southington, supra, 259 Conn. 795-96. Moreover, the test applied in both cases is virtually identical. Despite this apparent agreement between the parties as to the appropriate test to be applied to the allegation that the town's action lacked a rational basis, the court need not reach the issue because genuine issues of material fact exist as to whether the public defendants' actions were arbitrary and capricious.
In both Luce and Donahue, the Supreme Court summarized the rational basis test as follows: "In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decision maker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . ." (Citations omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., supra, 247 Conn. 144; Donahue v. Southington, supra, 259 Conn. 795-96. In Donahue, the court emphasized that "under this analysis, the legislature is not required to articulate the purpose or rationale for its classification. The test . . . is whether this court can conceive of a rational basis for sustaining the legislation; [the court need] not have evidence that the legislature actually acted upon that basis." (Citations omitted; emphasis in original; internal quotation marks omitted.) Donahue v. Southington, supra, 259 Conn. 796. In Luce, the court further explained: "Thus, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." (Citations omitted; internal quotation marks omitted.) Luce v. United Technologies, Corp. supra, 247 Conn. 144.
In support of their motion for summary judgment as to count six, the defendants have submitted no evidence to establish the absence of a genuine issue of material fact with regard to whether the public defendants' actions were arbitrary and capricious. They refer to "Cronin Aff. exh. C," "the affidavits of Town Manager Feldman and Finance Director Francis." Defendants' memorandum, p. 17. A review of the court file does not reveal any affidavit of Cronin or Francis. As discussed above in the section pertaining to count four, Feldman states in his affidavit, inter alia, that "[f]or several decades, the town has had the goal of developing the southeast area of West Hartford Center . . . The Town Hall, Board of Education, Noah Webster Public Library and Police Station are located in this area of West Hartford Center." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 5. "In addition, for several decades the Town has had the goal of consolidating the Board of Education and the Town administration in one building at the Town Hall for greater efficiency." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 6. "Expansion of the Noah Webster public library to meet twenty first century needs has also been in the planning stages for almost ten years." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 7. The affidavit further states, "[t]he Town will issue its general obligation bonds in the amount of [$48,800,00] ("Bonds") to fund construction of the public improvements in Blue Back Square. These public improvements will include renovation of the Town Hall; relocation of the Board of Education from its current location north of Memorial Road to the Town Hall; renovation and expansion of the public library; construction of two new public parking garages (the north and south garages); construction of a small retail area adjacent to the library; establishment of a new public plaza space to be know as Blue Back Square; creation of new pedestrian walkways; and construction of extensive street and infrastructure improvements including a new street, lighting, utilities, landscaping and sidewalks." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 14. "The development of Blue Back Square will enable the Town to meet its longtime goals of expanding the public library; combining the Board of Education with its administrative offices at the Town Hall; and developing the southeast area of the Center to provide new economic vitality to that area and the Center." Defendants' memorandum, exhibit 3, Feldman affidavit, 12/27/04, ¶ 15. Although these assertions show that the town's actions may not have been arbitrary and capricious, the plaintiffs have submitted evidence establishing a genuine issue of material fact.
In opposition, the plaintiffs have submitted evidence that the public defendants' conduct may have been arbitrary or capricious. For example, they have submitted the affidavit of Robert Doty, dated June 2, 2005, in which Doty states, inter alia, the following: "Start-up parking projects and special taxing districts for new developments are notoriously speculative"; plaintiffs' memorandum, exhibit R, ¶ 15; and "[t]he Town has not received, however, a financial feasibility or market/demand study of or performed a reasonable investigation relating to the parking garages or the new development." Plaintiffs' memorandum, exhibit R, ¶ 21. Further, Doty states that "[i]n my professional opinion, the Town did not conduct a thorough, independent financial feasibility analysis that should have accommodated widely accepted safeguards . . ."
Faced with this conflicting evidence concerning the reasonableness of the public defendants' actions, and the divergent inferences that the parties seek the court to draw from those actions, the court cannot grant summary judgment as to count six. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969) (finding that a genuine issue of material fact exists because "[a]lthough there appears to be little dispute as to the material subordinate facts, the parties are at issue on the inferences to be drawn from them and hence as to the ultimate facts"). Accordingly, the court denies the defendants' motion for summary judgment as to count six.
Count Seven
In count seven, the plaintiffs allege that the public defendant's adoption of the ordinance and the resolution authorizing execution of the master agreement, which would grant the exclusive power to dissolve the special services district to the members of that district, would allow those members to alter the mechanism for repayment of the general obligation bonds. They allege that a majority vote of the district members to dissolve the district would place the burden of repaying the bonds onto taxpayers located outside of the geographical limits of the district, thereby violating the plaintiffs' rights to substantive due process and equal protection as guaranteed by the federal and state constitutions. Complaint, ¶¶ 95-100. They further allege that "[t]he preferential grant of the franchise to a limited class of voters . . . is fundamentally unfair and shocks the conscience . . ." Complaint, ¶ 100.
In support of their motion for summary judgment, the defendants argue that the premise of this claim, that the dissolution of the district will shift a financial burden from property owners within the district to property owners outside the district, is incorrect. They contend that General Statutes § 7-339s, which governs dissolution of special services districts, provides that obligations of a special services district automatically remain obligations of the property within the former district upon dissolution of that district. They further contend that the special services district ordinance incorporates these statutory provisions. They maintain that if the district is dissolved for any reason, the town council has the authority under the General Statutes, the ordinance and the contract with the district to impose the levy on the owners of properties within the district. They argue that the owners of property outside the district, therefore, will not be affected if the owners of property within the district vote to dissolve the district.
The plaintiffs argue that the right to vote is a fundamental right requiring constitutional protection and that, accordingly, the court must apply strict scrutiny to the public defendants' "decision to impose restrictive voting classifications with respect to decisions to dissolve the [district]." Plaintiffs' memorandum, p. 32. The plaintiffs cite no authority for its argument that residents outside of a district should be entitled to vote regarding matters concerning only that district. The cases relied upon by the plaintiffs, Kramer v. Union Free School District No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) and Ball v. James, 451 U.S. 355, 357, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981), involve voting restrictions between different classes of people located within the district at issue. The plaintiffs also rely on Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 728-29, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) for the proposition that "[a] district may not impose an overly restrictive voting requirement if that district provides a service or function that impacts the general public." Plaintiffs' memorandum, p. 33. In that case, the United States Supreme Court upheld a voting restriction disallowing residents of the district who were not also owners of property within the district from voting, noting that "there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries." Id., 729. Where the economic burdens of district operations cannot fall on certain residents of the district, a voting restriction disallowing such residents from voting on matters concerning only that district would not violate the equal protection clause of the federal constitution. Similarly, a voting restriction allowing only property owners within the district to vote on matters that would not affect property owners outside the district would not violate those property owners' rights to equal protection under the federal or state constitutions.
The voting restriction at issue in count seven, which allows the district to be dissolved "after a referendum is conducted by the Board of Commissioners among all Property Owners within the district on the question of whether the District shall be dissolved"; plaintiffs' memorandum, exhibit D, § 161-30A; would not violate the plaintiffs' rights to equal protection or substantive due process under the federal or state constitutions. General Statutes § 7-339s provides in relevant part: "If any special services district is dissolved pursuant to subsection (a) of this section, the board of commissioners of such district shall proceed to wind up the affairs of such district as of the end of the then current fiscal year of such district. If, after the dissolution of a special services district, such district shall have liabilities, whether fixed or contingent, the legislative body of the municipality in which such district was located shall have the authority to impose, in addition to the regular municipal levy, a levy on the real property within such district, in the same manner as is provided for the determination of such levy by the board of commissioners of such district in the ordinance establishing such district, for as many years as any such liabilities shall remain outstanding, and such levy shall be calculated to produce enough revenues to satisfy and release such liabilities as they become due . . ." In the event of dissolution, the municipality, therefore, would have the authority to impose a levy on the properties within the district for the payment of any outstanding liabilities of that district at the time of dissolution. Section 7-339s does not grant the authority to the municipality to impose such a levy on property owners within the town that are outside the boundaries of the district. Accordingly, restricting the right to vote to dissolve the special services district to property owners within the district would not violate the plaintiffs' rights to equal protection under the federal or state constitution.
Although the plaintiffs have alleged that this voting restriction would also violate their constitutional rights to substantive due process, they have not briefed this claim. Moreover, in light of the court's finding that the plaintiffs would not be adversely affected by the decision of the property owners within the special services district to dissolve the district, the court finds that the plaintiffs' rights to substantive due process similarly would not be affected. Accordingly, the defendants' motion for summary judgment as to count seven of the complaint is granted.
Motion to Dismiss Count Eight
The defendants move to dismiss count eight of the complaint on the grounds that the court lacks subject matter jurisdiction over that count because the plaintiffs have failed to exhaust their administrative remedies. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[B]ecause the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs'] claim." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 812 A.2d. 725 (2003). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998).
The defendants argue that the claims in count eight are challenges to the actions of the town council acting in its capacity as the zoning authority of West Hartford. They contend that such claims may be raised only in an administrative appeal and that this court, therefore, lacks jurisdiction to consider these claims in any other context, such as this declaratory judgment action. They further contend that the exception to the exhaustion doctrine allowing a party to bring an independent action to test certain constitutional issues without first bringing an administrative appeal does not apply to this claim because that exception is limited to the narrow circumstance in which a "procedural constitutional defect prevents the administrative remedy from being effective . . ." Defendants' memorandum, p. 21. Moreover, they argue, count eight contains no constitutional claim. They contend that even if the claim in that count is construed as a constitutional challenge to the defendant's actions, judicial bypass of even colorable constitutional claims is limited to instances of demonstrable futility in pursuing an available administrative remedy. They argue that an administrative remedy is adequate if it can provide the plaintiff with the relief that it seeks and can provide a mechanism for judicial review of the administrative decision. Finally, they contend that the plaintiffs could have appealed from the actions of the West Hartford zoning authority on the same grounds as set forth in count eight, and thereby obtained the relief sought.
The plaintiffs argue that the defendants' arguments relate to due process rights and that due process is not implicated by the claims in count eight because no administrative process can cure the defects in the defendants' actions. They also contend that a facial constitutional challenge is an exception to the exhaustion doctrine and that its claims in count eight constitute such a challenge. The court is not persuaded.
"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [The Supreme Court has] frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure . . ." The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . .
The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief . . ." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563-64, 821 A.2d 725 (2003).
"As the Supreme Court has] noted . . . there are recognized exceptions to the exhaustion doctrine, but [it has] recognized such exceptions only infrequently and only for narrowly defined purposes . . . One such exception involves a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency . . . [T]he mere allegation of a constitutional violation [however] will not necessarily excuse a [party's] failure to exhaust available administrative remedies . . . The test is whether the appeal would be futile because the administrative agency . . . lacks the authority to grant adequate relief." Id., 570.
A review of the allegations in count eight does not reveal any reference to the state or federal constitution and, therefore, does not contain any constitutional challenge to the town's actions. Moreover, even if the plaintiffs had asserted a constitutional challenge, such a challenge would not obviate the need to exhaust an otherwise adequate statutory remedy. "[Simply bringing a constitutional challenge to an agency's actions will not necessarily excuse a failure to follow an available statutory appeal process . . . [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore . . . [The Supreme Court continues] to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy." (Internal quotation marks omitted.) Id., 571.
Although paragraph 104 of the complaint contains allegations to suggest that § 177-44 of the West Hartford code may be invalid, the plaintiffs do not seek any relief related to this allegation other than "a declaratory judgment that the approval of an amendment to Special Services District #36 and the creation of new Special Development Districts #113 and #114 is unlawful and void . . ." The exception to the exhaustion doctrine for a challenge to the validity of an ordinance, therefore, is not applicable because the plaintiffs are not challenging the regulation under which the agency operates; rather, they challenge the actions of the agency. Such a challenge to an action by the zoning authority of West Hartford could have been brought as an administrative appeal pursuant to General Statutes § 8-8. Section 8-8(b) provides that "any person aggrieved by any decision of a board . . . may take an appeal to the [S]uperior [C]ourt . . . The appeal shall be commenced by service of process . . . within fifteen days from the date that the notice of the decision was published as required by the [G]eneral [S]tatutes . . ." The plaintiffs' failure to commence a timely administrative appeal challenging the defendants' actions pursuant to that section precludes them from seeking such relief in a declaratory judgment action. Accordingly, the court finds that the plaintiffs have failed to exhaust their administrative remedies with respect to count eight and that the court, therefore, lacks subject matter jurisdiction to consider this claim in the context of this declaratory judgment action. For this reason, the court grants the defendants' motion to dismiss count eight.
CONCLUSION
For the foregoing reasons, the court denies the defendants' motion for summary judgment as to count six, grants the motion for summary judgment as to counts one, two, three, four, five and seven, and grants the motion to dismiss count eight.
Kevin E. Booth, Judge