Opinion
No. CV03 0175538-S
March 25, 2004
DEFENDANTS' MOTION TO DISMISS #120
ISSUES
This motion to dismiss presents two issues: (1) whether the plaintiff, Richard Wolff, may collaterally attack, in 2002, the validity of a condition to a subdivision approval that had been imposed in 1998 but that had not been challenged by appeal at that time; and (2) whether the plaintiff, an owner of property capable of subdivision, may challenge by way of declaratory judgment the constitutionality of an amended subdivision regulation despite his actually having applied for subdivision approval.
FACTS
The court gathers the following facts from the plaintiff's amended complaint. On July 1, 1998, the defendant Watertown planning and zoning commission (commission) approved the plaintiff's application to construct an eleven-lot subdivision on property located at Hamilton Avenue in the town of Watertown. The commission approved the application subject to the condition " that a contribution in lieu of the sidewalks be made to the sidewalk fund based on the total frontage of the interior road and Hamilton Avenue less 15% of said footage, in an amount to be determined by the Director of Public Works." (Emphasis added.) (Amended Complaint, Count 1, ¶ 5.) Rather than appeal the commission's decision, the plaintiff met with the director of public works to discuss the amount he would be obligated to contribute to the sidewalk fund. The director assessed the contribution in the amount of $50,000, and the plaintiff paid in full.
On September 4, 2002, after having been advised by this attorney of the impropriety of requiring developers to contribute money to a sidewalk fund in lieu of installing sidewalks, the commission amended § 5.4 of the Watertown subdivision regulations (which permitted the commission to require subdivision applicants to install sidewalks), adding language authorizing, "as part of the subdivision approval, the payment of a fee to a sidewalk fund of the Town of Watertown in lieu of installing sidewalks." (Amended Complaint, Count 3, ¶ 26.) A month later, the plaintiff demanded that the town return his original contribution, with interest. The town demurred.
Before the commission amended § 5.4, it provided: "The installation of sidewalks, pedestrian walkways, or ramps may be required on thoroughfares, 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." (Amended Complaint, Count 1, ¶ 6.)
Section 5.4, as amended, provides: "The commission may authorize as an option as part of the subdivision approval, the payment of a fee to a sidewalk fund of the town of Watertown in lieu of installing the sidewalks. Such fee to be calculated by the Director of Public Works to reflect the average cost per linear foot of such construction. All moneys 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 Zoning commission." (Amended Complaint, Count 3, ¶ 26.)
Now, more than four years after the commission approved his application, the plaintiff filed this three-count amended complaint against the defendants, the commission and the town of Watertown (town), alleging that the commission lacked the authority to compel the plaintiff to contribute money to the town sidewalk fund in lieu of installing sidewalks (count one); that the town has been unjustly enriched at his expense (count two); and that § 5.4 of the Watertown subdivision regulations, as recently amended, violates General Statutes § 8-25 and is unconstitutional (count three). He seeks a declaratory judgment that "the conditions attached to the approval of [his] subdivision plan on July 1, 1998 requiring a contribution to the sidewalk fund is unlawful"; (Amended Complaint, Count 1, ¶ 21); reimbursement of the amount he paid to the sidewalk fund; and a declaratory judgment that § 5.4 of the Watertown subdivision regulations, as amended, violates § 8-25 and is unconstitutional.
The defendants move to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction on the grounds that he failed to exhaust his administrative remedies as to counts one and two, and that the allegations set forth in count three are not ripe for review. The plaintiff filed memoranda in opposition.
DISCUSSION
"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, 590 A.2d 914 (1991). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
"Because 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 [plaintiff's] claim." (Internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). "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).
"It is well established that `[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.'" Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendants move to dismiss counts one and two for lack of subject matter jurisdiction on the ground that the plaintiff failed to exhaust his administrative remedies. They argue that the plaintiff cannot collaterally attack the validity of a condition to a subdivision approval that had been imposed in 1998 but that had not been challenged by appeal at the time. In doing so, they rely upon Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), in which the Supreme Court "reaffirmed and applied the general rule that one may not institute a collateral action challenging the decision of a zoning authority." Torrington v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d 1020 (2002). The plaintiff acknowledges the validity of this general rule, but counters that this case fits squarely within its exceptions, as set forth in dictum in Upjohn Co.: "exceptional cases [1] 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 [2] in which the continued maintenance of a previously unchallenged condition would violate some strong public policy." Upjohn Co. v. Zoning Board of Appeals, supra, 104-05.
In Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 763 A.2d 1011 (2001), the Supreme Court first had occasion to apply the latter exception — cases in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. The plaintiffs in that case filed an application with the zoning board of appeals seeking a variance from the zoning regulation's setback requirements. Id., 145-46. In May of 1986, the board approved the application, subject to, inter alia, the following condition: "the use of the home would be limited to family use and would not be used for rental purposes." Id., 146. The plaintiffs did not appeal. Id. Approximately four years later, the plaintiffs moved out of the home and started renting the property. Id. The zoning enforcement officer eventually learned of this and, in May of 1996, issued an order to comply to the plaintiffs. Id. In June of that year, the plaintiffs filed an application with the board requesting that it invalidate the no rental condition. Id., 147. The board denied the plaintiffs' application, and the trial court denied the plaintiffs' subsequent appeal, holding that "the plaintiffs' failure to file an appeal challenging the validity of the no rental condition within fifteen days from the date when notice of the board's decision was published in 1986 deprived the court of subject matter jurisdiction . . ." Id. The Appellate Court affirmed and a third appeal followed. Id., 145.
In reversing the Appellate Court, the Supreme Court acknowledged the general rule barring collateral attacks on decisions of a zoning authority, but held that the "continued maintenance of the no rental condition violates our strong public policy against restrictions on the free alienability of property." Id., 150. In doing so, the Supreme Court clarified the second exception enunciated in Upjohn Co.: "under this prong . . . we focus, not on the state of affairs that existed when the condition at issue originally was imposed, but on the current state of affairs in which the condition is being enforced." Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 150. Applying this principle, the Supreme Court concluded that "the no rental condition is so restrictive of the plaintiffs' ability to alienate their property that it outweighs the public policy considerations underlying the bar on collateral attacks." Id., 155-56.
Here, the plaintiff argues that the continued maintenance of the disputed condition (i.e., the contribution to the sidewalk fund) violates the following public policy: "an . . . interest in maintaining the rule of law in our society that is undermined each time an administrative body disregards the unlawful limits of its authority." (Plaintiff's Brief, p. 16.) Under the public policy exception, however, "we focus on the continued maintenance of the condition, and whether, irrespective of the fact that the condition was previously unchallenged, it nonetheless currently violates] some strong public policy." (Emphasis added; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 151. Thus, even assuming, for the sake of argument, that the commission consciously "[disregarded] the unlawful limits of its authority" when it imposed the condition in its July 1, 1998 decision, once the plaintiff made the contribution to the sidewalk fund — in September of 1998 — the condition, for all intents and purposes, ceased to exist. Its continued maintenance, therefore, does not currently violate some strong public policy. Accordingly, the court rejects the plaintiff's argument.
In Torringion v. Zoning Commission, supra, 261 Conn. 768, the Supreme Court addressed the other exception to the general rule prohibiting collateral attacks on zoning decisions, namely, "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 . . ." (Internal quotation marks omitted.) There, the defendant property owners applied, in 1988, to the Harwinton zoning commission (Harwinton commission) to rezone their property. Id., 762. The Harwinton commission notified the Torrington planning and zoning commission (Torrington commission) of the proposed zone change because the subject property was adjacent to its boundary. Id. The Harwinton commission eventually denied the application, and the defendant property owners appealed that decision to the Superior Court. Id., 763. The parties proposed to settle their dispute through a stipulated judgment under which the Harwinton commission would approve the application subject to four conditions — conditions that varied, to a slight extent, the zoning regulations applicable to the subject property. Id., 763-64. The court approved the stipulated judgment in early 1991. Id., 764-65. Despite having had notice of the application, the plaintiff, the city of Torrington, did not seek to intervene or to participate in the appeal or at the hearing at which the Harwinton commission approved the stipulated judgment. Id., 765. Approximately seven years later, the defendant Jerry Saglimbeni applied to the Harwinton commission for a special permit and site plan approval regarding the subject property. Id. The Harwinton commission approved the application, noting that the application satisfied the regulations, as modified by the stipulated judgment. Id., 766. The trial court denied the plaintiff's subsequent appeal, and the Appellate Court affirmed. Id.
The defendant property owners subsequently withdrew their application and applied, instead, to the Torrington commission for subdivision approval with regard to their adjoining Torrington property. Torrington v. Zoning Commission, supra, 261 Conn. 762. The Torrington commission approved their application, after which the defendant property owners reapplied to the Harwinton commission to rezone the subject property. Id.
On appeal, the plaintiff argued, among other things, that the Harwinton commission "had no authority to amend or vary Harwinton's special permit regulations by way of the stipulated judgment." Id., 767. Rather than challenge the plaintiff's claim that the stipulated judgment varied the zoning regulations, the defendants argued that the plaintiff "may not now collaterally attack the stipulated judgment." Id. The Supreme Court framed the issue as "whether the plaintiff, in 1998, was entitled to attack collaterally a certain stipulated judgment rendered by the trial court in 1991." Id., 761. According to the court, "it must be an `exceptional [case]' that will justify disturbing the stability of unchallenged land use decisions . . . 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." (Citation omitted; emphasis added.) Id., 768.
To determine whether the plaintiff met this very high standard, the court set forth a three-part inquiry: first, whether "the lack of jurisdiction in the Harwinton commission was far from obvious"; id., 769; second, whether "the plaintiff . . . had the opportunity to litigate the question of the Harwinton commission's jurisdiction at that time"; id., 770; and, third, "whether the Harwinton commission's conduct in entering into the stipulated judgment . . . 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." Id.
With regard to the initial question, the court noted that "a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values . . ." Id., 769. It also noted that there is a "trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations"; (internal quotation marks omitted) id., 769-70; and that, "[i]n making such determinations . . . a zoning commission may rely heavily upon general considerations such as public health, safety and welfare." (Internal quotation marks omitted.) Id., 770. The court concluded that, "[a]lthough these authorities do not stand for the proposition that a zoning commission ordinarily may vary zoning regulations for a particular parcel of property, they nonetheless suggest that it was not entirely obvious that the Harwinton commission's conduct in entering into the stipulated judgment in the present case was outside its purview." (Emphasis added.) Id., 770.
With Torrington as guidance, the threshold question in the present case is whether the commission's lack of jurisdiction was "entirely obvious" when it conditioned approval of the plaintiff's application on the payment of a fee to the town sidewalk fund in lieu of installing sidewalks within the subdivision. As noted by Judge Corradino, it is a "difficult question . . . whether the lack of jurisdiction was plain or obvious . . . whatever that means." (Citation omitted; emphasis added.) Lord v. Smith, Superior Court, judicial district of New London, Docket No. FA 97 0543668 (January 13, 2003, Corradino, J.) ( 33 Conn.L.Rptr. 708, 711). Nevertheless, traced to its source, "entirely obvious" becomes, well, slightly more obvious.
The majority in Torrington borrowed the phrase "entirely obvious" from Upjohn Co., in which the Supreme Court observed that, "at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James Hazard, op cit. 695; Restatement (Second), Judgments, supra." (Emphasis added; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104. Under the restatement view, "[w]hen a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation except if: (1) The subject matter of the action was so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority . . ." (Emphasis added.) 1 Restatement (Second), Judgments § 12 (1982). The reporter's note to § 12 states that "cases involving plain excess of jurisdiction are rare," and then cites, as an example, a single case, State ex rel City of Mayfield Heights v. Bartunek, 12 Ohio App.2d 141, 231 N.E.2d 326 (Oh.App. 1967), in which a probate court ruled on the constitutionality of a city zoning ordinance.
The remainder of Restatement (Second), Judgments § 12 contains two other provisions allowing relitigation if "(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or (3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court's subject matter jurisdiction."
Thus, "situation[s] where the court lacks the power to hear a particular class of case would fall within this exception." Bridgeport v. Debek, 22 Conn. App. 517, 519, 578 A.2d 150, appeal dismissed, 216 Conn. 824, 582 A.2d 203 (1990); see also Evans v. Evans, 75 Md. App. 364, 371, 541 A.2d 648 (1988) ("[o]nly when a court lacks the `fundamental jurisdiction to render the judgment' is there an absence of authority so as to render the judgment a nullity"); In Interest of A.E.H., 161 Wis.2d 277, 317, 468 N.W.2d 190 (1991) (court "construe[d] the term `manifest abuse of authority' narrowly, and reserve[d] their application to egregious cases where a court lacks the power to hear a particular class of case . . . Otherwise, every jurisdictional error could arguably be characterized as a manifest abuse of authority, and the exception would be rendered meaningless." [Citation omitted.]) For instance, "[w]hen Congress has provided for the automatic ouster of state court jurisdiction such that the question of preemption requires no jurisdictional finding to give it effect, and a state nevertheless proceeds to judgment in conflict with the Congressional intent, it is apparent that collateral attack is available against that judgment. For example, when a debtor files a bankruptcy proceeding, the state is deprived automatically of its jurisdiction and any further action by the state is not only a nullity but is subject to collateral attack. Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). Similarly, when a case is removed under 28 U.S.C. § 1441 from a state court to a federal court, the state court is automatically deprived of jurisdiction to hear the matter unless and until the federal court remands it. If the state court proceeds to judgment after removal, the judgment is a nullity and is subject to collateral attack. United States v. Ohio, 487 F.2d 936 (Temp.Emer.Ct.App. 1973), cert. denied, 421 U.S. 1014, 95 S.Ct. 2422, 44 L.Ed.2d 683 (1975).
"In each of these cases the Congress determined that the state courts were preempted from even determining whether federal jurisdiction applied, and the continued exercise by the state court of jurisdiction was so plainly beyond its jurisdiction that it was a manifest abuse of the state's authority to continue." Weiner v. Blue Cross of Maryland, Inc., 730 F. Sup. 674, 681-82 (D.Md. 1990), aff'd, 925 F.2d 81 (4th Cir.), cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991).
With that in mind, the majority's conclusion in Torrington that the commission's lack of jurisdiction was not "entirely obvious" suggest the following. Although the commission in that case lacked the authority to vary the town's special permit regulations; Torrington v. Zoning Commission, supra, 261 Conn. 777-82 (Vertefeuille, J., dissenting); it was, nevertheless, "empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values . . ." Id., 769. The commission, therefore, possessed "the power to hear [that] particular class of case"; Bridgeport v. Debek, supra, 22 Conn. App. 519; that is, it possessed the power to act on the application.
The same is true here. General Statutes § 8-26 provides that "[a]ll plans for subdtvisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application." A planning commission has the authority "to [determine] whether the plan complies with the applicable regulations"; R.B. Kent Sons, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990); and, although "[n]othing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission's approval of a subdivision plan"; Shailer v. Planning Zoning Commission, 26 Conn. App. 17, 28, 596 A.2d 1336 (1991): "where the imposed `conditions' bear a rational relationship to the enumerated health, safety and public welfare concerns set forth in General Statutes § 8-25, such conditional approval may be appropriate." Id. As in Torrington, the commission here possessed the authority to act on the plaintiff's application, and just because the commission attached an improper condition to its approval of the plaintiff's application does not mean that the commission acted so plainly beyond its jurisdiction so as to constitute a manifest abuse of authority. That exception is reserved for egregious cases, in which there is a lack of power to act in the first instance — as in State ex rel City of Mayfield Heights v. Bartunek, supra, 12 Ohio App.2d 149. Because the commission in this case possessed the power to act on the plaintiff's subdivision application, the court concludes that the commission's lack of jurisdiction was not "entirely obvious."
Returning to Torrington, with regard to the second question in the three-part inquiry, the court concluded that "the plaintiff having had notice of the original zoning proceedings that led to the stipulated judgment, had the opportunity to litigate the question of the Harwinton commission's jurisdiction at that time." Torrington v. Zoning Commission, supra, 261 Conn. 770. Here, the plaintiff, as a party to the commission's proceedings, also had the opportunity to litigate the question of the commission's jurisdiction at the time.
As to the final question, the court in Torrington concluded that the commission's conduct was not 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 because "the decision to enter into a stipulated judgment served to settle a vigorously contested appeal"; id.; "for the most part, the extent to which the stipulated judgment in fact varied the zoning regulations was not so clearly outside the zoning power as to preclude any justified reliance"; id., 771; and the city secured a valuable property interest in connection with the earlier judgment. Id., 775. The court held, therefore, that the city was not entitled to collaterally attack the stipulated judgment rendered by the trial court. Id., 761.
In the present case, the court concludes that the commission's conduct was not so far outside what could have been regarded as a valid exercise of its power that there could not have been any justified reliance on it. It does so for the following reasons. First, as already noted, the commission possessed the authority to act on the plaintiff's application, and, pursuant to § 5.4 of the Watertown subdivision regulations, it was authorized to require the plaintiff to install sidewalks within the land to be subdivided. Second, at the commission's meeting at which it entertained the plaintiff's application, the plaintiff made clear that he preferred to make a contribution to the town sidewalk fund in lieu of installing sidewalks within the subdivision. In fact, the minutes reflect that the plaintiff "commented that [he] would like to make a contribution, there is no doubt that it would be about $50,000 and that is a pretty fair amount for 12 lots, they feel." (Plaintiff's Exhibit D, p. 9.) Third, as in George v. Watertown, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177611 (November 17, 2003, Matasavage, J.), a nearly identical case factually, "[t]he plaintiff paid the sidewalk assessment then proceeded to develop his land and construct his subdivision without sidewalks in accordance with the commission's decision. The plaintiff, any successors in interest, the town and abutting property owners have relied upon the zoning decision and have moved on." These considerations belie any claim that there was no justified reliance on the condition. Because the plaintiff has failed to meet the very high standard allowing for collateral attacks; Torrington v. Zoning Commission, supra, 261 Conn. 768; the court grants the defendants' motion to dismiss as to counts one and two.
The defendants move to dismiss count three (in which the plaintiff attacks the constitutionality of the amended subdivision regulation) for lack of subject matter jurisdiction on the ground that the claims are not ripe or justiciable. In support, the defendants argue that there is no actual or existing controversy between the parties because the plaintiff has not yet filed a subdivision application with the commission. The plaintiff responds that he has satisfied the conditions necessary to maintain a declaratory judgment action.
Preliminarily, the court must address the commission's concern as to whether a declaratory judgment action is an appropriate vehicle by which to challenge the constitutionality of an amended subdivision regulation. The commission relies on the Supreme Court's decision in Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), particularly the fact that it overruled Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989). Although the Supreme Court did in fact "abandon the Cioffoletti rule requiring that general attacks on the validity of legislation be brought in the form of declaratory judgment actions instead of substantive appeals"; (emphasis added) Stafford Higgins Industries, Inc. v. Norwalk, supra, 582; the court's decision in Bombero v. Planning Zoning Commission, 218 Conn. 737, 591 A.2d 390 (1991), still remains intact. In that case, unlike Cioffoletti, the Supreme Court did not require that all general attacks on the validity of legislation be brought by way of a declaratory judgment action instead of an administrative appeal. Instead, the Supreme Court held: "where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment Id., 745. Thus, a declaratory judgment action is an appropriate vehicle by which to challenge the constitutionality of an amended subdivision regulation.
The Appellate Court's decision in Bombero v. Planning Zoning Commission, 40 Conn. App. 75, 669 A.2d 598 (1996), a factually analogous case, helps to resolve whether the plaintiff has satisfied the conditions necessary to maintain a declaratory judgment action. The plaintiff in Bombero challenged by way of a declaratory judgment action the constitutionality of an amended subdivision regulation. Id., 76. The trial court denied the requested relief and held that there was no actual controversy between the parties because the plaintiff had failed to file, or to express any intention to file, a subdivision application. Id., 77. The Appellate Court reversed the judgment of the trial court, noting: "We are not aware of any Connecticut case that requires a plaintiff first to apply for a permit, variance, subdivision or other similar relief before the plaintiff can be permitted to bring a subsequent declaratory judgment action in order to determine the constitutionality of the regulation that governs such relief." Id., 82. Indeed, "[o]ne great purpose [of a declaratory judgment action] is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits." (Emphasis in original; internal quotation marks omitted.) Id., 79.
The court explained that this was the second action brought by the plaintiff involving the same regulation, the first being an appeal from its enactment, which the trial court sustained, holding that the regulation was void for vagueness. Bombero v. Planning Zoning Commission, supra, 40 Conn. App. 76-77. The Supreme Court reversed this decision, stating that "where, as here, the plaintiff mounts a general attack on the legislative enactment of the regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal. Thus, the plaintiffs in this case should have brought a declaratory judgment action in order to raise their challenges to the facial invalidity of the regulation." (Internal quotation marks omitted.) Id., 77, quoting Bombero v. Planning Zoning Commission, supra, 218 Conn. 745-46. The plaintiffs, thereafter, filed the declaratory judgment action that was the subject of the Appellate Court's review.
The court was mindful, however, of the standing requirement: "We must also . . . recognize the fundamental requirement that in order to attack the constitutionality of regulations, the plaintiff must demonstrate that his interests are adversely affected in that a legal or equitable interest is uncertain or in danger of loss." Id., 82. According to the court, "[t]he fact that the plaintiff has not applied to subdivide his property is not determinative of whether the plaintiff has been adversely affected"; id., 87; rather, "the plaintiff has standing to bring a declaratory judgment action because, pursuant to Practice Book § [17-55(1) and (2)], he is adversely affected by the regulation. The fact that the plaintiff owns property that can be subdivided, which is clearly within the purview of the zoning regulation, coupled with the plaintiff's general attack on the legislative enactment of the regulation, based primarily on constitutional vagueness grounds, and the language of Bombero v. Planning Zoning Commission, supra, 218 Conn. 745, suggesting that a declaratory judgment action was the proper vehicle to raise his constitutional challenge to the regulation in question, constitutes sufficient aggrievement for the plaintiff to seek declaratory relief." Id., 84.
Practice Book § 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met:
"(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of 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 the declaratory judgment immediate 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."
As in Bombero, the plaintiff in this case has satisfied the requirements set forth in § 17-55. Under § 17-55(1), "[t]he party seeking the declaratory judgment [must have] an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations . . ." "The question of standing to pursue a declaratory judgment under § 17-55(1) is evaluated under a standard analogous to the aggrievement test for administrative appeals." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 38.2, p. 270. "To be an aggrieved person. [(1)] one must be affected directly or in relation to a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of all members of the community, and [(2)] [one] must be specially and injuriously affected as to property or other legal rights." Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).
"To be aggrieved by a particular statute or regulation . . . one need not have applied for relief under that statute or regulation before bringing a declaratory judgment action. Thus one need not apply for a permit and be denied such permit before challenging the statute or regulation governing the issuance of such permits." 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 226, p. 588.
To satisfy the first part of the classical aggrievement test, the plaintiff must demonstrate that he has an identifiable legal interest in the subject matter of the commission's decision. In his complaint, the plaintiff alleges that he owns an interest in approximately fifty acres of residentially zoned land located on Route 6 in the town of Watertown, and that he intends to subdivide that land In doing so, he has "demonstrated a specific interest affected by the amendments, the first prong of classical aggrievement, because those amendments apply only to tracts of land in the town capable of subdivision, which land covers only a small area of the town's total acreage." Lewis v. Planning Zoning Commission, 62 Conn. App. 284, 292, 771 A.2d 167 (2001); see also Hardy Farm Ltd. Partnership v. Southbury Planning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0363908 (May 4, 2001, Stevens, J.) ("The amendment at issue here only affects subdividable land, of the property . . . [The plaintiff] is the owner of a large tract of subdividable land that is covered by the amendment and, therefore, under existing case law, it has an identifiable legal interest sufficient to satisfy the first prong of the classical aggrievement test.") Because the plaintiff has "adequately demonstrated an identifiable legal interest that the community as a whole does not share [he] . . . ha[s] . . . satisfied the first prong of the classical aggrievement test." Lewis v. Planning Zoning Commission, supra, 293.
Under the second part of the classical aggrievement test, the plaintiff must demonstrate that the commission's decision has specially and injuriously affected his legal interest. This requirement "does not demand certainty, only the possibility of an adverse effect on a legally protected interest." Id., 288. "It should be sufficient if it [is] apparent in some respect that the property [will] be affected by the regulation if a subdivision [is] filed in the future." 9A R. Fuller, supra, § 36.5, p. 241. Here, in the event that the plaintiff files a subdivision application, it is reasonably possible that he will be required to pay a substantial sum to the sidewalk fund in order to improve sidewalks outside the subdivision. Indeed, as alleged in counts one and two, in connection with a prior subdivision application, he was required, as a condition of approval, to contribute $50,000 to the sidewalk fund — and that was before the commission amended § 5.4 of the Watertown subdivision regulations, thereby authorizing such conduct. Thus, the plaintiff has shown the possibility that the amended regulation affects him differently from the general public and that he is specially and injuriously affected by the regulation.
Under § 17-55(2), there must be "an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties . . ." "This provision means no more than that there must appear a sufficient practical need for the determination of the matter, and that need must be determined in the light of the particular circumstances involved in each case." Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951). The plaintiff alleges that he owns an interest in approximately fifty acres of residentially zoned land in Watertown, that he intends to subdivide that land, and that there exists a substantial uncertainty as his rights as an owner of property capable of subdivision. Similar to the plaintiff in Bombero, "[a]s an owner of property that has the potential for subdivision, the plaintiff is entitled to be able to ascertain with reasonable certainty the validity of the adopted regulation and its affect on his rights as a property owner." Bombero v. Planning Zoning Commission, supra, 40 Conn. App. 88.
The commission argues, nevertheless, that Practice Book § 17-55(3) requires the plaintiff to exhaust his administrative remedies before this court may exercise jurisdiction over the plaintiff's claim. Under § 17-55(3), the court may maintain a declaratory judgment action if, "[i]n the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate 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." That section "allows the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete." (Emphasis added.) England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981). Practice Book § 17-55(3) is "a rule of discretion, not jurisdiction, and the burden is on the defendant to show that the court cannot, in the exercise of its discretion, permit his declaratory judgment action to proceed." United States Fidelity Guaranty Ins. Co. v. Decilio, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 92 0298501 (June 29, 1993, Lager, J.) ( 9 Conn.L.Rptr. 314).
In an effort to satisfy this burden, the defendant cites to River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, 262 Conn. 84, 809 A.2d 492 (2002), a case that is readily distinguishable from the present case. In that case, the plaintiffs, residential housing developers, sought approval from the Simsbury water pollution control authority (authority) to connect 269 homes to Simsbury's sewer system. Id., 91. The authority denied the plaintiffs' application, and the plaintiffs filed an action in the Superior Court, seeking declaratory and injunctive relief. Id., 91-92. The trial court dismissed the plaintiffs' action, concluding that it lacked subject matter jurisdiction because the plaintiffs had failed to exhaust their administrative remedies. Id., 93.
In affirming the trial court's judgment, the Supreme Court noted that the plaintiffs were required to appeal the authority's refusal to allow the plaintiffs to connect the 269 homes with the municipal sewer system to the commissioner of the department of environmental protection. Id., 102. The court explained: General Statutes § "22a-430(f) provides that any permit denied or order issued pursuant to that section shall be subject to a hearing and appeal as provided in [General Statutes] § 22a-436 and General Statutes § 22a-437. Section 22a-436 provides that any person aggrieved by an order or decision to deny an application may request a hearing before the commissioner. Section 22a-437 provides that any person aggrieved by a decision by the commissioner may appeal from a final determination of the commissioner to the Superior Court." Id., 101. "[T]he authority [therefore] had jurisdiction to entertain the plaintiffs' application to connect 269 homes to the Simsbury sewer system and that the department [of environmental protection] was the appropriate agency to which the plaintiffs could have appealed the denial of the application. Thus, the plaintiffs had an adequate administrative remedy that they failed to exhaust." Id., 102.
Here, unlike River Bend Associates, Inc., the plaintiff has not filed an application; was not denied approval; and, therefore, does not have "another form of action [that] clearly affords a speedy remedy as effective, convenient, appropriate and complete . . ." England v. Coventry, supra, 183 Conn. 365. In addition, as already discussed, a declaratory judgment action is an appropriate vehicle by which to challenge the constitutionality of an amended subdivision regulation. The court, therefore, rejects the defendants' argument and concludes that the plaintiff has satisfied the conditions necessary to maintain a declaratory judgment action. Accordingly, the court denies the defendants' motion to dismiss as to count three of the plaintiffs' amended complaint.
CONCLUSION
In accordance with the foregoing, the court grants the defendants' motion to dismiss as to counts one and two and denies the defendants' motion to dismiss as to count three.
SO ORDERED.
ROBERT L. HOLZBERG, J.