Opinion
CV 03 0177612S
November 17, 2003
MEMORANDUM OF DECISION
The defendants, Town of Watertown and Planning Zoning Commission, have moved to dismiss this matter on the grounds that the trial court lacks subject matter jurisdiction. Specifically, the defendants argue that the plaintiff did not exhaust his administrative remedies with respect to counts one, two and three, and the matters are not ripe for review in count four; therefore, the matter must be dismissed.
The facts relative to this motion are not in dispute. On or before August 2, 1995, the plaintiff applied to the Watertown Planning and Zoning Commission for a 12-lot residential subdivision on land that he owned on the west side of Middlebury Road in Watertown. As a condition for approval, the commission required that the plaintiff install sidewalks on adjacent property which he did not own at the time; however, the plaintiff subsequently purchased that property. The plaintiff thereafter attempted to install sidewalks on the property, but could not gain necessary approvals from the inland wetlands agency to complete the entire sidewalk.
Thereafter, on June 5, 1996, the commission approved the plaintiff's plan whereby as a condition, he agreed to install so much of the sidewalk as allowed by the inland wetlands agency, and he would pay into a separate account the necessary monies enabling the town to install the remaining sidewalk. On November 20, 1996 the plaintiff paid the sum of $7600.00 as assessed by the defendant commission. As of the date of the complaint, the town has not completed the remainder of the sidewalk.
At the time that the application was approved, the town did not have any ordinance or regulation authorizing a "sidewalk fund," nor was there any state statutory authority for one. Nonetheless, the plaintiff failed to take any appeal of the commission's decision pursuant to C.G.S. § 8-8.
On May 2, 2002, the town attorney notified the commission of his belief that the regulations lacked a provision authorizing a sidewalk fund. On September 4, 2002, the commission passed an amendment to its regulations, numbered 5.4, authorizing the payment of fees to a sidewalk fund as an option for subdivision approval.
The prior regulation read: SIDEWALKS AND RAMPS:
The installation of sidewalks, pedestrian walkways, or ramps may be required on thorough fares, in pedestrian easements, on local streets in the vicinity of schools and playgrounds and in other places deemed proper by the commission. When sidewalks are required construction plans for the sidewalks shall be submitted and shall be shown on the plan and profile drawings required in Section 4.3.2. All sidewalks shall be at least 5 feet wide.
The amendment added the following language:
The Commission may authorize as an option as part of the subdivision approval, the payment of a fee to a sidewalk fund to the Town of Watertown in lieu of installing sidewalks. Such fee to be calculated by the Director of Public Works to reflect the average cost per linear foot of such construction. All monies to be collected shall be used exclusively for the construction of new sidewalks in areas being necessary for pedestrian safety as recommended to the Town Council by the Planning and Zoning Commission.
On March 27, 2003, the plaintiff filed this four-count complaint. Count one claims that the commission's fund assessment was illegal, violates public policy interests and unjustly enriches the commission, and the plaintiff seeks money damages for restitution of his monies paid. Count two seeks a declaratory judgment claiming that the condition attached to the approval of the plaintiff's June 5, 1996 subdivision plan requiring a contribution is unlawful. Count three claims unjust enrichment and reimbursement from the town. Count four seeks a declaratory judgment that the new regulation section 5.4 violates C.G.S. § 8-25 and is unconstitutional.
I
"The motion to dismiss shall be used to assert . . . jurisdiction over the subject matter . . ." Practice Book § 10-31(a)(1). "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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763 (1999).
"[I]n ruling upon whether a complaint survives a motion to dismiss, 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." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996). "[A] claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552 (1997). "[P]arties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." Jolly Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996).
II.
The defendants seek to dismiss counts one, two and three for the failure of the plaintiff to take an appeal of the June 6, 1996 approval by the Watertown Planning and Zoning Commission of the plaintiff's application for a residential subdivision. "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 (1998).
The plaintiff's counsel acknowledges that the plaintiff could have taken an appeal of the commission's decision after June 6, 1996. However, he urges the court to consider whether the facts in this case warrant an exception to the rule prohibiting collateral attack on zoning decisions. He claims that because the commission knew, or should have known that their actions were illegal, the court should find that there could not be justified reliance. He further claims that the conditions that the commission imposed required the commission to install sidewalks on Middlebury Road, and because it has failed to do so, he is entitled to restitution.
In Torrington v. Zoning Commission, 261 Conn. 759, 767 (2002), our supreme court reaffirmed the standard set out in Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102 (1992), and applied the general rule that one may not institute a collateral action challenging the decision of a zoning authority. "[T]he rule requiring interested parties to challenge zoning decisions in a timely manner `rest[s] in large part . . . on the need for stability in land use planning and the need for justified reliance by all interested parties — the interested property owner, any interested neighbors and the town — on the decisions of the zoning authorities.'" However, "there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted," Torrington v. Zoning Commission, 261 Conn. at 768. "It is not enough that the conduct in question was in violation of the applicable zoning statutes or regulations. It must be shown that the conduct was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it. Thus, a litigant who seeks to invoke this exception must meet a very high standard," id.
The issue here is whether the actions of the planning and zoning commission were so egregious that a collateral attack should be allowed. The plaintiff argues in his brief of the many shortcomings and illegalities in the commission's procedures in 1995 and 1996. Nonetheless, he never took an appeal pursuant to C.G.S. § 8-8. The commissions' actions were not in conformance with their own regulations; however, under present law, that fact is not enough. The plaintiff acknowledged in paragraph 21 of his second count, that the contribution to the sidewalk account was a condition to his subdivision approval. The plaintiff paid the sidewalk contribution, then proceeded to develop his land and construct his subdivision with partially completed sidewalks, all in accordance with the commission's decision.
The plaintiff attaches weight to the fact that the commission has not completed the sidewalk. The condition agreed to by the plaintiff does not give a time frame in which the town must complete the sidewalk, nor does it address the fact that inland wetlands approval may be required and may not be possible. Both of these problematic scenarios were known to the plaintiff at the time he agreed to the conditions, yet he approved of them and did not appeal the decision.
The plaintiff, any successors in interest, the town and abutting property owners have relied upon the zoning decision for the past seven years. Also, the town has since amended its zoning regulations authorizing a contribution to the sidewalk fund as a condition to zoning approval. The actions of the commission do not result in any condition resulting in a continuing violation of public policy. The court does not find that the plaintiff has met the high standard allowing for collateral attack. Therefore, the defendants' motion to dismiss is granted as to counts one, two and three.
In Gangemi v. Zoning Board of Appeals, 255 Conn. 143 (2001), the court found that the actions of the board were so restrictive on the plaintiffs' ability to alienate their property that it outweighed public policy considerations, and the general ban on a collateral attack was exempted for their claim.
III.
The defendants next claim that the fourth count must be dismissed because the issues raised are not ripe or justiciable. An issue regarding justiciability must be resolved as a threshold matter because it implicates this court's subject matter jurisdiction. (Citations omitted.) Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616, 624 (2003).
"Our Supreme Court has consistently held that our courts may not render advisory opinions. Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone. Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. The general rule is that a case is justiciable if it is `capable of resolution on the merits by judicial action.'" (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Town of Groton, 46 Conn. App. 514, 517 (1997).
"The justiciability of a claim is related to its ripeness. The basic rationale [of the ripeness doctrine] is to prevent the courts, through premature avoidance of adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring [the court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." (Citations omitted; brackets in original.) Id. at 517-18.
The plaintiff alleges that he owns an interest in land on Sunnyside Avenue in Watertown, which is the subject of a subdivision approval. He also alleges that he is engaged in the business of residential construction and has been for over ten years, and his business includes the purchase and development of residential lots for construction and sale. However, the plaintiff does not allege that he currently has any application pending before the planning and zoning commission, or whether his application involves construction plans for sidewalks or contributions to the sidewalk fund. Therefore, there is not any actual pending controversy between the parties, and the court cannot, as such, give the plaintiff any actual relief on this count.
The plaintiff argues that because the actions of the commission caused him harm in the past, the new regulation will cause him harm in the future. Since he may have to face the same mischief again, he should be entitled to a declaratory judgment.
"The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances. A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies. Invoking § 52-29 does not create jurisdiction where it would not otherwise exist. (Implicit in [§ 52-29 and Practice Book § 17-55] is the notion that a declaratory judgment must rest on some cause of action that would be cognizable in a nondeclaratory suit . . . To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions . . . and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist.)" (Citations omitted; brackets in original; internal quotation marks omitted.) Milford Power Co. v. Alstom Power, Inc., 263 Conn. at 625.
It is clear that the plaintiff does not have a pending application, dispute or controversy with the commission, nor can the court give him any practical relief in this count. Since there is no actual pending controversy, the matter is not justiciable. Therefore, the plaintiff's fourth count must be dismissed.
In conclusion, the court orders the all four of the plaintiff's counts dismissed.
MATASAVAGE JUDGE.