Opinion
FSTCV115013733S
02-23-2016
Christopher Stefanoni et al. v. Environmental Protection Commission of the Town of Darien et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Donna Nelson Heller, J.
The plaintiffs Christopher Stefanoni (Mr. Stefanoni) and Margaret Stefanoni (Mrs. Stefanoni) commenced this declaratory judgment action, returnable October 4, 2011, against the Environmental Protection Commission of the Town of Darien (the Darien EPC), the town of Darien (Darien), and the Commissioner of the Connecticut Department of Environmental Protection, now known as the Department of Energy and Environmental Protection (the DEEP commissioner). The plaintiffs own property in Darien that borders a body of water known as " Holly Pond, " described more fully below. In their third amended complaint (#109.00), filed April 4, 2012, the plaintiffs, who are representing themselves in this action, seek a declaratory judgment pursuant to Practice Book § 17-54 et seq. that (i) the Darien EPC " has no jurisdiction over Holly Pond and no authority to regulate or require permits for activities based on the proximity to or effects of such activities on Holly Pond, " and (ii) " Sections 2.1.y.3 and 2.1.y.4 of the Darien Inland Wetlands and Watercourses Regulations regarding activities within 100 and 200 feet of Holly Pond are invalid."
On April 19, 2012, Darien and the Darien EPC (collectively, the Darien defendants) moved to dismiss this action on the grounds that the court lacked subject matter jurisdiction because the plaintiffs had failed to exhaust their administrative remedies and their claim was not ripe for adjudication (#110.00). The court (Karazin, J.) denied the motion to dismiss on August 2, 2012, finding that the administrative remedies available to the plaintiffs were inadequate within the context of the case, and thus a declaratory judgment action was the proper vehicle to challenge the Darien EPC's jurisdiction, notwithstanding that the plaintiffs had not applied to the agency for a permit under the regulations (#110.87).
The DEEP commissioner answered the third amended complaint on August 31, 2012. On September 17, 2012, the Darien defendants filed an answer to the third amended complaint and asserted two special defenses: as a first special defense, a claim that the court did not have subject matter jurisdiction because the plaintiffs were not aggrieved and thus lacked standing; and as a second special defense, a claim that the plaintiffs had failed to comply with the notice requirements of a declaratory judgment action. The plaintiffs replied to the special defenses on September 26, 2012.
This action was tried to the court on May 27, 2015. The court heard testimony from four witnesses: Mrs. Stefanoni; Jeremy Ginsberg, the director of planning and zoning for the Town of Darien; Richard Jacobson, the environmental protection officer for the Darien Planning and Zoning Commission (the Darien P& Z); and James MacBroom, a senior vice president of Milone and MacBroom, Inc. The plaintiffs filed a post-trial memorandum (#134.00) on August 20, 2015. The Darien defendants filed a post-trial memorandum (#138.00) on October 19, 2015. The DEEP commissioner also filed a post-trial memorandum (#137.00) that day. The plaintiffs filed a reply memorandum (#140.00) on November 2, 2015.
Mr. MacBroom was disclosed as the Darien defendants' expert witness (#127.00). The court accepted Mr. MacBroom as an expert qualified in the field of hydrological and water resource engineering.
The DEEP commissioner was named as a party in this declaratory judgment action. The DEEP commissioner submitted a post-trial memorandum to set forth the statutory framework for state and municipal regulation of wetlands and watercourses. The DEEP commissioner took no position with respect to the plaintiffs' standing and the other defenses raised by the Darien defendants.
I
The Darien Inland Wetlands and Watercourses Regulations (the Darien IWW regulations) that are the subject of this declaratory judgment action have their genesis in the Inland Wetlands and Watercourses Act, General Statutes § § 22a-36 through 22-45, inclusive, enacted in 1972 and amended thereafter. The preamble to the Act provides that " [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state . . ." General Statutes § 22a-36. In subsection (a) of General Statutes § 22a-42, the legislature declared that it was " the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts" in order to effectuate the " purposes and policies" of the Inland Wetlands and Watercourses Act. General Statutes § 22a-42(a). Under subsection (c) of § 22a-42, each municipality was required to " establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of [the Inland Wetlands and Watercourses Act]" on or before July 1, 1988. General Statutes § 22a-42(c). Subsection (c) further provided that " [e]ach municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39 [of the Inland Wetlands and Watercourses Act], as are necessary to protect the wetlands and watercourses within its territorial limits." General Statutes § 22a-42(c).
The purpose of the Inland Wetlands and Watercourses Act, as articulated in the preamble, is " to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority; preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn." General Statutes § 22a-36.
Following the enactment of the Inland Wetlands and Watercourses Act, Darien established the Inland Wetlands and Watercourse Agency of the Town of Darien (the Darien Inland Wetlands and Watercourses Agency) in accordance with an ordinance adopted on September 24, 1973. The Darien Inland Wetlands and Watercourses Agency became a part of the Darien EPC by ordinance adopted on May 12, 1986 and was charged with implementing the " purposes and provides of the Inland Wetlands and Watercourses Act in the Town of Darien." Darien IWW regulations § 1.2. As set forth in the Code of Ordinances of the Town of Darien, " [t]he town does hereby establish an environmental protection commission. Its purpose is the protection, preservation and maintenance of our natural resources, the prevention of floods, and the protection of inland wetlands and watercourses within, or bordering, the territorial limits of the town." Darien Code, Ch. 22, Art. II, § 22-21. The Darien EPC was empowered under General Statutes § 22a-42(f) to promulgate regulations to carry out the purposes of the Inland Wetlands and Watercourses Act. The current Darien IWW regulations, issued by the Darien EPC, became effective February 16, 2007.
The Darien IWW regulations were in effect when the plaintiffs became the owners of the Nearwater Lane property, as defined below, on August 9, 2007.
Section 1.3 of the Darien IWW regulations provides that the regulations were " adopted and may be amended, from time to time, in accordance with the provisions of the Inland Wetlands and Watercourses Act and these regulations." Darien IWW regulations § 1.3. Under § 1.4 of the regulations, " [t]he Agency shall enforce all provisions of the Inland Wetlands and Watercourses Act and shall issue with or without modifications, or deny permits for all regulated activities on inland wetlands and watercourses in the Town of Darien pursuant to Section 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes, as amended." Darien IWW regulations § 1.4.
" Agency" is defined in § 2.1(b) of the Darien IWW regulations to mean the Darien EPC, which administers the Darien IWW regulations.
Section 2.1(y) of the Darien IWW regulations defines " regulated activity" as " any operation within or use of a wetland or watercourse (or activity removed from a wetland or watercourse which affects a wetland or watercourse) involving removal or deposition of material; or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in Section 4 of these regulations. In addition to the above, regulated activities shall include: 1. grading, filling, excavation, or any other earth-disturbing activities; or removal or deposition of any material; or removal of any existing vegetation within fifty (50) feet of wetlands or watercourses. 2. obstructions, whether man-made or natural, of wetlands or watercourses. 3. the location of any portion of any subsurface waste disposal system, including any earth-disturbing activities reasonably associated herewith, within 200 feet of Holly Pond or Gorham's Pond, or the mean high water line of the Noroton, Five Mile, or Goodwives River, or Tokeneke, or Stony Brook; within 150 feet of the mean water line of other watercourses; and within 50 feet of wetlands. 4. the location of any portion of any structure including any earth-disturbing activities reasonably associated herewith, within 100 feet of Holly Pond or Gorham's Pond, or the mean high water line of the Noroton, Five Mile, or Goodwives River, or Tokeneke, or Stony Brook; within 50 feet of all other watercourses or wetlands." Darien IWW regulations § § 2.1(y)(3) and 2.1(y)(4).
Section 4 of the Darien IWW regulations sets forth permitted uses as of right and non-regulated uses in inland wetlands and watercourses.
" Watercourses" are defined in § 2.1(ii) of the Darien IWW regulations as " rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon the Town or any portion thereof not regulated pursuant to section 22a-28 through 22a-36 of the General Statutes, as amended." Darien IWW regulations § 2.1(u). Section 2.1(jj) of the Darien IWW regulations defines " wetlands" as " land, including submerged land as defined in section 2.1(dd) of these regulations, not regulated pursuant to Section 22a-28 through 22a-35, inclusive, of the Connecticut General Statutes, which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial and flood plain by the National Cooperative Soils Survey, as it may be amended from time to time, of the Soil Conservation Service of the U.S. Department of Agriculture (USDA). Such areas may include filled, graded, or excavated sites which possess an aquic (saturated) soil moisture regime as defined by the USDA Cooperative Soil Survey." Darien IWW regulations § 2.1(jj).
The definition of " watercourses" in the Darien IWW regulations does not exclude tidal ponds or salt ponds. The definition is the same as that in General Statutes § 22a-38(16), except that it does not include the expanded definition of " intermittent watercourses" set forth in the statute.
Section 3 of the Darien IWW regulations concerns the agency's inventory of areas that are subject to the regulations. Under § 3.3, the Darien EPC or its agent " shall inventory and maintain current records of all regulated areas within the Town." Darien IWW regulations § 3.3. Section 3.1 provides that " [t]he map of regulated areas, entitled 'Inland Wetlands and Watercourses Map, Darien, Connecticut, ' delineates the general location and boundaries of inland wetlands and general location of watercourses." Darien IWW regulations § 3.1. A property owner " who disputes the designation of any part of his or her land as a regulated area on the Inland Wetlands and Watercourses Map, may petition the agency to change the designation. All petitions for a map change shall be submitted in writing and shall include all relevant facts and circumstances which support the change. The petitioner shall provide proof that the designation is inapplicable. Documentation in accordance with Section 14 of these regulations may be required of the property owner when the agency requires an accurate delineation of regulated areas." Darien IWW regulations § 3.2.
The map is styled the " Town of Darien Regulated Wetlands and Watercourses Map" (the Darien Regulated Wetlands and Watercourses Map).
Section 14 of the Darien IWW regulations addresses amendments to the regulations and the Darien Regulated Wetlands and Watercourses Map. Darien." Darien IWW regulations § 6.1. Section 6.2 reiterates that " [t]he Agency shall regulate any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution of such Wetlands or Watercourses and any other Regulated Activity, unless such operation or use is permitted or non-regulated pursuant to Section 4 of these Regulations." Darien IWW regulations § 6.2. Section 7 of the Darien IWW regulations sets forth the requirements for applying for a permit to conduct a regulated activity within an inland wetland or watercourse area in the town, and Section 8 describes the application procedure. Darien IWW regulations § § 7, 8. Section 9 of the Darien IWW regulations provides for public hearings on applications under certain circumstances. Darien IWW regulations § 9. Section 10 lists the documents and other criteria to be considered by the Darien EPC in making a decision on an application, and Section 11 relates to the decision process and permit. Darien IWW regulations § § 10, 11.
Under Darien IWW regulations § 6.1, " [n]o person shall conduct or maintain a Regulated Activity without first obtaining a permit for such activity from the Inland Wetlands Agency of the Town of
Under Darien IWW regulations § 11.6, " [i]f the Agency denies the permit, or if it grants a permit with terms, conditions, limitations or modifications, the applicant may attempt to modify the proposal to the Agency's satisfaction. The Agency shall determine whether the proposed modification requires the filing of a new application. The rejection of a modified and corrected application by the Agency shall be equivalent to the denial of an application for the purposes of appeal." Darien IWW regulations § 11.6.
Section 14.3 sets forth the information required to be included in a petition requesting a change or an amendment to the Darien Regulated Wetlands and Watercourses Map (styled the " Inland Wetlands and Watercourses Map, Darien Connecticut in Section 14). Darien IWW regulations § 14.3. Sections 14.6 and 14.7 provide for public hearings on petitions to amend the Darien Regulated Wetlands and Watercourses Map or to change the mapped boundaries of any wetland or watercourse. Darien IWW regulations § § 14.6, 14.7. Under Section § 15.1, " [a]ppeals on actions of the Agency shall be made in accordance with the provisions of Section 22a-43 of the General Statues [sic], as amended." Darien IWW regulations § 15.1.
General Statutes § 22a-43 provides in pertinent part that " [t]he commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district." General Statutes § 22a-43(a).
Subdivisions (3) and (4) of § 2.1(y) of the Darien IWW regulations--to the extent that they purport to regulate activities in or near the body of water known as Holly Pond--are at issue here. Holly Pond is a man-made water body created by a dam across the Noroton River that retains water on the upstream side. The water in Holly Pond is brackish, with varying amounts of freshwater and salt water, depending on the ratio between the freshwater flowing downstream from the Noroton River at low tide and the salt water from Long Island Sound coming upstream over the top of the dam at high tide. Holly Pond is a tidal pond or, more precisely, a tidally influenced brackish watercourse. Holly Pond is identified as a watercourse on the Darien Regulated Wetlands and Watercourses Map in effect as of August 30, 2011.
The court credits the testimony and the expert report (Darien Defendants' Exhibit E) of the Darien defendants' expert witness, Mr. MacBroom.
The plaintiffs are the record owners of the property located at 149 Nearwater Lane in Darien, Connecticut (the Nearwater Lane property) that has approximately one hundred feet of frontage along Holly Pond. The plaintiffs object to the Darien IWW regulations to the extent they concern Holly Pond because, according to the plaintiffs, Holly Pond is a coastal body of water, not an inland wetland or an inland watercourse, and, therefore, it is subject to regulation by the Darien Planning and Zoning Commission (Darien P& Z), pursuant to the provisions of the Coastal Management Act, General Statutes § § 22a-90 to 22a-111, inclusive, and is not under the jurisdiction of the Darien EPC. Although they contest the regulation of Holly Pond as a watercourse by the Darien EPC, the plaintiffs have not petitioned the Darien EPC pursuant to Darien IWW regulations § 3.2 to change the designation of Holly Pond as a watercourse on the Darien Regulated Wetlands and Watercourses Map or to alter the mapped boundaries of Holly Pond. In addition, the plaintiffs have not submitted an application to the Darien EPC pursuant to Sections 6 and 7 of the Darien IWW regulations for a permit to conduct a regulated activity in or around Holly Pond, and they have not expressed an intention to do so.
The plaintiffs attempt to draw a distinction between " inland watercourses" and " tidal watercourses" that is not found in the General Statutes or relevant case law.
II
Rather than challenge the Darien EPC's jurisdiction over Holly Pond through the administrative process set forth in the Darien IWW regulations, with the right to appeal an adverse ruling to the Superior Court pursuant to General Statutes § 22a-43, the plaintiffs instead commenced this action, in which they seek a declaratory judgment that the Darien EPC has no jurisdiction over Holly Pond and no authority to regulate or require permits for activities relating to Holly Pond, and that, as a result, Darien IWW regulations § § 2.1(y)(3) and 2.1(y)(4) are invalid. Under General Statutes § 52-29(a), " [t]he Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." General Statutes § 52-29(a). Practice Book § 17-55 provides that " [a] declaratory judgment action may be maintained if . . . (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger or loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." Practice Book § 17-55.
" The purpose of a declaratory judgment action, as authorized by . . . § 52-29 and Practice Book § [17-55], is to secure an adjudication of rights [when] there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties . . ." (Citations omitted; internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 726, 95 A.3d 1031 (2014). A trial court is afforded wide discretion in allowing a party to proceed with a declaratory judgment action unless it is evident that there exists a more effective and convenient type of action to resolve a justiciable controversy. (Citations omitted.) Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 83, 571 A.2d 153 (1990).
The Darien defendants contend--as they previously argued in their motion to dismiss--that the court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies. They have asked the court to revisit Judge Karazin's decision denying the motion. " [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case . . ." (Citation omitted; internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
The Darien defendants moved for a judgment of dismissal at the close of the plaintiffs' case. The court denied the motion without prejudice to the Darien defendants' arguing the issues previously raised before Judge Karazin and the question of aggrievement in closing. The parties subsequently presented their closing arguments in their post-trial memoranda.
As a preliminary matter, the court will first consider whether Judge Karazin's prior ruling on the motion to dismiss is the law of the case. Under the law of the case doctrine, " [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App. 390, 395, 865 A.2d 1223 (2005). " A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002).
In response to the Darien defendants' motion for judgment after the plaintiffs rested, the court indicated that while it was inclined to treat Judge Karazin's decision as the law of the case, it recognized that it could determine the issues independently, and it gave the Darien defendants the opportunity to make the argument at the conclusion of the trial. Trial transcript dated May 27, 2015, at 68.
Judge Karazin's ruling on the motion to dismiss was an interlocutory ruling. " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). When the court addresses the issue of subject matter jurisdiction following a trial on the merits, however, it must determine whether the plaintiff has sustained its burden of proving subject matter jurisdiction, which is an entirely different inquiry and analysis, conducted with the benefit of a full record. See Biello v. Town of Watertown, 109 Conn.App. 572, 578, 953 A.2d 656 (2008) (because court must view evidence in light most favorable to nonmoving party when considering motion for summary judgment, and is required to construe facts alleged in complaint in manner most favorable to pleader when considering motion to dismiss, court's previous rulings on motion to dismiss and motion for summary judgment did not address directly issue presented after four days of evidence submitted at trial). See also Henderson v. Lagoudis, 148 Conn.App. 330, 339, 85 A.3d 53 (2014) (ruling denying motion to dismiss not law of the case at subsequent hearing on motion for summary judgment because court applies different principles and analysis when ruling on motion to dismiss as opposed to motion for summary judgment); Manifold v. Ragaglia, 94 Conn.App. 103, 891 A.2d 106 (2006) (same).
Following the decisions of our Appellate Court in Biello, Henderson and Manifold, the court concludes that the law of the case doctrine is not applicable with respect to Judge Karazin's prior interlocutory ruling on the Darien defendants' motion to dismiss. Accordingly, the court will revisit the question of whether it has subject matter jurisdiction based on the full record at trial.
III
The Darien defendants maintain that the Inland Wetlands and Watercourses Act and the Darien IWW regulations provide the plaintiffs with an adequate administrative remedy. They claim that, in view of the plaintiffs' failure to seek relief initially from the Darien EPC, the court is without jurisdiction to hear their declaratory judgment action, and the action must be dismissed.
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 . . . Exhaustion is required even in cases where the agency's jurisdiction over the proposed activity has been challenged . . . This requirement reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment . . ." (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 103, 809 A.2d 492 (2002). " Under [the exhaustion] 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; internal quotation marks omitted.) Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012). " The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . We have recognized such exceptions only infrequently and only for narrowly defined purposes . . ." (Citation omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 565, 821 A.2d 725 (2003). " [When] 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 . . ." (Citation omitted; internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 208, 105 A.3d 210 (2014).
Recognized exceptions to the exhaustion requirement include where " recourse to the administrative remedy would be futile or inadequate"; (Citation omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. at 565; or where there is 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." (Citations omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990). Neither exception is applicable here.
" The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review . . . Moreover, resolution of the issues at the administrative level may render judicial review unnecessary . . . A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene." (Citations omitted; internal quotation marks omitted.) Housing Authority v. Papandrea, 222 Conn. 414, 420-21, 610 A.2d 637 (1992). " Thus, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, supra, 315 Conn. at 208.
" Where there is in place a mechanism for adequate judicial review, . . . [i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act--that is, to determine the coverage of the statute--and this question need not, and in fact cannot, be initially decided by a court . . . This general rule is in accord with our frequently stated observation that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." (Citations omitted; internal quotation marks omitted.) Greater Bridgeport Transit Dist. v. Local Union 1336, Amalgamated Transit Union, 211 Conn. 436, 439-40, 559 A.2d 1113 (1989). The jurisdictional claim raised in the plaintiffs' declaratory judgment action is properly, and exclusively, within the power of the Darien EPC to decide in the first instance. The plaintiffs may then, if necessary, raise the jurisdictional issue in an administrative appeal pursuant to General Statutes § 22a-43a.
As the plaintiffs did not avail themselves of any of the procedures set forth in the Darien IWW regulations to bring the question of the agency's jurisdiction over Holly Pond before the Darien EPC prior to commencing this action, the court finds that the plaintiffs have failed to exhaust their administrative remedies. In view of their failure to do so, the court lacks subject matter jurisdiction.
IV
The Darien defendants also claim by way of special defense and in their post-trial memorandum that the plaintiffs do not have standing because they are not aggrieved, which implicates the court's subject matter jurisdiction as well. " Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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 in the controversy . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013). " [A] [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 809-10, 992 A.2d 1120 (2010).
" Aggrievement is essentially a question of standing; without it, a court must dismiss an action for want of jurisdiction." (Citation omitted.) Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it . . ." (Citations omitted; internal quotation marks omitted.) Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 575, 79 A.3d 115, cert. denied, 310 Conn. 964, 83 A.3d 346 (2013). " There are two general types of aggrievement, namely, classical and statutory . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case." (Citations omitted; internal quotation marks omitted.) Trikona Advisers Ltd. v. Haida Investments Ltd., 318 Conn. 476, 485, 122 A.3d 242 (2015). The plaintiffs do not claim statutory aggrievement; therefore, the court will consider only the question of whether the plaintiffs have demonstrated classical aggrievement.
" The fundamental test for determining [classical] aggrievement encompasses a wellsettled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citation omitted; internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., supra, 312 Conn. at 729.
The aggrievement test is applied to declaratory judgment actions and administrative appeals. See Connecticut Business & Industry Assn. v. Commission on Hosp. & Health Care, 218 Conn. 335, 589 A.2d 356 (1991).
In the land use context, " general amendments to land use regulations do not traditionally satisfy the first part of the classical aggrievement test, but . . . a change of regulations applying only to a particular zone covering a small area of . . . the municipality . . . is appealable by an owner of land within the zone . . ." (Internal quotation marks omitted.) Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. at 289. A plaintiff does not have to show that it has an interest which is exclusive to it alone, but only that it has an interest which is not shared by the community at large. See, e.g., Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 376 n.3, 610 A.2d 617 (1992) (property owners in " affected zone" were aggrieved); Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. at 289-90 (where between five and twenty percent of town was affected by regulation, plaintiffs were aggrieved).
The plaintiffs are the owners of the Nearwater Lane property, which has frontage along Holly Pond. Subdivisions (3) and (4) of § 2.1(y) of the Darien IWW regulations directly affect the Nearwater Lane property because they purport to regulate, inter alia, activities in and around Holly Pond. These regulations directly impact the owners of property abutting Holly Pond and other watercourses in Darien, and they do not affect the community at large. Accordingly, the plaintiffs have satisfied the first prong of the classical aggrievement test.
To meet the second prong of the classical aggrievement test, a plaintiff must show that it has suffered an actual injury. " Mindful that it is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer . . . [a plaintiff is] required to plead and prove some injury in accordance with our rule on aggrievement . . ." (Citation omitted; internal quotation marks omitted.) Handsome, Inc. v. Planning & Zoning Commission, supra, 317 Conn. at 526. The injury must not be remote or indirect. Id. " A fair reading of relevant decisional law makes it clear . . . that proof of a possibility of specific harm is not the same as mere speculation regarding harm . . . Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement." (Citation omitted.) Goldfisher v. Siting Council, 95 Conn.App. 193, 198, 895 A.2d 286 (2006). " Allegations and proof of mere generalizations and fears are not enough to establish aggrievement." (Citation omitted; footnote omitted; internal quotation marks omitted.) Water Pollution Control Authority v. Keeney, 234 Conn. 488, 496, 662 A.2d 124 (1995).
Our courts require parties to offer more than mere speculation when challenging land use regulations. As our Supreme Court has observed, " regulations do not exist in a vacuum . . . Trial courts are not required to make predictions about how a commission may one day apply regulations to a potential claimant. In order to meet its burden, a party seeking to invalidate a regulation is required to present sufficient facts to the court that demonstrate the regulation's adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven." (Citations omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 190, 779 A.2d 134 (2001); see also Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 577, 79 A.3d 115, cert. denied, 310 Conn. 964, 83 A.3d 346 (2013) (plaintiff's claim of aggrievement based on a mere unapproved site plan proposal is speculative).
The plaintiffs have submitted evidence that they are property owners in a zone subject to Darien IWW regulations § § 2.1(y)(3) and 2.1(y)(4). They argue that these regulations are invalid because they provide that the Darien EPC has jurisdiction to regulate activity relating to Holly Pond, a watercourse over which the Darien P& Z should have exclusive jurisdiction. The plaintiffs' claim of aggrievement is based solely on their belief that " there should be one application process through the Coastal Area Management Act . . . and not subject to a secondary environmental review by the Environmental Protection Commission." As Mrs. Stefanoni explained: " If we were to apply to do any work within 100 feet of Holly Pond, we would have to apply to the Planning and Zoning Commission, and under the regulations, we're disputing to the Environmental Protection Commission as well."
Trial transcript dated May 27, 2015, at 21 (testimony of Margaret Stefanoni).
Id.
The plaintiffs' claim that they would have the burden of submitting an application to the Darien EPC, as well as to the Darien P& Z, if they decided in the future to do some work within 100 feet of Holly Pond fails to satisfy the second prong of the classical aggrievement test. They have offered no evidence to show how applying to the Darien EPC would cause them injury. Any potential adverse effect is merely speculative, because the plaintiffs have not submitted an application for a permit to either agency, and they have not indicated that they intend to do so. The plaintiffs have not met their burden of proving aggrievement. Therefore, they do not have standing to prosecute this declaratory action, and the court lacks subject matter jurisdiction.
V
In view of the court's determination that it lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies and they do not have standing, the court does not reach the merits of the plaintiffs' claims. The plaintiffs' challenge to the jurisdiction of the Darien EPC, particularly with respect to the Darien IWW regulations relating to activities in or near Holly Pond, must in the first instance come before the agency itself. Accordingly, this action is dismissed.
The Darien defendants also argue that the plaintiffs failed to comply with the joinder and notice requirements for commencing a declaratory judgment action, and, therefore, the matter must be dismissed on this ground as well. The court does not reach the joinder issue in view of its ruling with respect to subject matter jurisdiction. The court notes, however, that Practice Book § 17-56(c) provides that the exclusive remedy for nonjoinder or failure to give notice to interested persons in a declaratory judgment action is by motion to strike, and defects in joinder and notice are not jurisdictional. See Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. at 289 (failure to notify interested persons in a declaratory judgment action does not implicate the court's subject matter jurisdiction).