Opinion
Nos. FST CV 07-4012483 S, FST CV 07 4011735 S, FST CV 07401845 S, FST CV 06 4010477 S
June 17, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #s 117, 119, 120, 122
Procedural History
The issue before this court is whether the plaintiffs, as environmental intervenors, may assert certain claims in this administrative appeal from the granting of an inland and wetland's permit. This administrative appeal principally challenges the propriety of the Westport Conservation Commission's decision to grant the permit in connection with the construction of a YMCA in Westport.
The relevant procedural history is as follows: On January 10, 2008, the plaintiffs, Arthur Cohen and Y Downtown, Inc., filed this amended appeal against the defendants, the Westport Conservation Commission (the commission), the town of Westport (the town), the Westport Flood and Erosion Control Board (the FECB), the Department of Environmental Protection (the department), and the Westport/Weston Family Y (the Family Y). This appeal arises out of the Family Y's application for approval of an inland and wetland's permit to construct a facility located on a site known as Camp Mahackeno in Westport.
The plaintiffs filed a notice of intervention in the application process pursuant to General Statutes § 22a-19. Therein, the plaintiffs alleged that the application was reasonably likely to have the effect of polluting, impairing or destroying the public trust in the air, water or other natural resources of the state by permitting the release of excess amounts of nitrogen and other contaminants into the wastewater. Thereafter, on May 7, 2007, the commission approved, with conditions, the Family Y's application for the inland and wetland's permit. This appeal followed the commission's approval. The Family Y has filed a motion to strike asserting that the plaintiffs lack standing, pursuant to § 22a-19, to raise certain claims upon appeal to this court.
CT Page 10267
Legal Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001)."A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
In the present case, the defendants argue that the plaintiffs lack standing, pursuant to § 22a-19, to pursue claims that fail to address substantive environmental issues. As such, it maintains that the court should grant its motion to strike those claims contained in the plaintiffs' administrative appeal complaint that are procedural in nature. The plaintiffs contend that they retain standing to challenge any procedural irregularities that deprived them of the right to a fundamentally fair hearing. Additionally, the plaintiffs maintain that § 22a-19 provides them with standing to raise constitutional and procedural claims that have an environmental nexus.
"[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . [T]he court has a duty to dismiss, even on its own initiative, any [action] that it lacks jurisdiction to hear . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent . . . Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citation omitted; internal quotation marks omitted.) Lewis v. Slack, 110 Conn.App. 641, 643-44, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008).
Section 22a-19(a) provides: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." The statutory conferring of standing under § 22a-19 was legislatively granted to allow all persons an adequate remedy by which to protect the environment. AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 416, 908 A.2d 1033 (2006).
In Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 157, 953 A.2d 1 (2008), the court squarely addressed the precise nature of an environmental intervenor's standing. The court held "that an [environmental] intervenor's standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute and only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." (Emphasis added; internal quotation marks omitted.) Further, the court stated that "[t]he intervenors have cited no case, and we have found none, in which this court has permitted environmental intervenors to raise purely procedural issues when the only basis for standing that they have alleged is § 22a-19. Although this court never expressly has concluded that standing under § 22a-19 does not include standing to raise any related procedural issues, it is axiomatic that the statute encompasses substantive environmental issues only . . ." (Emphasis added.) Id., 159. Thus, as intervenors pursuant to § 22a-19, the plaintiffs retain standing to assert substantive environmental issues but may not allege procedural irregularities.
The defendants concede that the plaintiffs have the right to a fundamentally fair hearing, and, by implication, that the plaintiffs have standing to raise limited issues of fundamental fairness upon appeal. Nonetheless, they argue that the claims raised by the plaintiffs greatly exceed the scope of the requirements of fundamental fairness. "The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections . . ." (Internal quotation marks omitted.) Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 607 n. 6, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008). "Hearings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987). "Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence, or to cross-examine witnesses produced by his adversary . . . [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence." (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 274, 703 A.2d 101 (1997).
The plaintiffs thus retain standing to raise two distinct types of claims: claims which present a substantive environmental nexus, and claims asserting a deprivation of fundamental fairness regarding the administrative proceeding before the commission.
Consideration of Evidence Relating to Studies
In paragraphs 6(g) and 6(x) of the administrative appeal complaint in Cohen v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 074012483 (CV 074012483) and paragraphs 4(g) and 4(x) of the administrative appeal complaint in Cohen v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011845 (CV 07 4011845), the plaintiffs allege that the commission failed to meaningfully consider evidence presented by the intervenors and failed to account for a lack of sufficient studies. The defendants contend that as these claims are not strictly environmental in nature they are outside the scope of § 22a-19 and must be stricken. The plaintiffs argue these evidentiary issues swayed the outcome of the commission's decision which, if not overturned, would result in irreversible environmental damage. Therefore they claim these issues have a clear and obvious environmental nexus.
An administrative agency is not required to use in any particular fashion any of the materials presented to it providing that the conduct of the hearing is fundamentally fair. Goldstar Medical Services v. Department of Social Services, 288 Conn. 790, 955 A.2d 15 (2008); Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). As such, the allegation that the commission failed to credit certain pieces of evidence, or conversely failed to find negative implications from the lack of sufficient studies, does not independently raise issues of fundamental fairness. "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Woodbarn v. Conservation Commission, 37 Conn.App. 166, 172, cert, denied, 233 Conn. 906, 657 A.2d 645 (1995).
The commission had no obligation to credit the evidence presented by the environmental intervenors or to draw any one conclusion therefrom. The claims asserted are procedural in nature and therefore outside the scope of the intervenors' statutory environmental standing conferred by § 22a-19. Accordingly, the court grants the defendants' motion to strike paragraphs 6(g) and 6(x) of the administrative appeal complaint in CV 07 4012483 and paragraphs 4(g) and 4(x) of the administrative appeal complaint in CV 07 4011845.
Procedural Irregularities
The plaintiffs assert numerous procedural irregularities by the commission. In paragraph 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in Cohen v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 064010477 (CV 06 4010477); paragraph 9 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 07 4012483; and paragraph 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 07 4011845, the plaintiffs allege that the conduct of administrative proceedings were inadequate to protect the environment of the state. The plaintiffs additionally contest paragraph 11(e) of the administrative appeal complaint in Y Downtown, Inc. v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 074011735 (CV 07 4011735), asserting that the commission permitted withdrawal and re-submission of the application. For the reasons previously set forth, the plaintiffs lack standing to assert purely procedural claims. Accordingly, the plaintiffs' claims exceed the scope of their statutory standing and the defendants' motion to strike paragraph 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 06 4010477; paragraph 9 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 07 4012483; paragraph 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 07 4011845; and paragraph 11(e) of the administrative appeal complaint in CV 07 4011735 is granted.
Failure to Credit Expert Testimony
In paragraph 4(v) of the administrative appeal complaint in CV 07 4011845 and paragraph 6(v) of the administrative appeal complaint in CV 07 4012483, the plaintiffs allege that the commission acted illegally and improperly in considering and crediting expert testimony which they deemed to be unqualified and which they assert fatally tainted the commission's findings. The plaintiffs assert that qualifying "an individual as an expert who fails to even hold the most basic of engineering credentials, destroys the fairness of the hearing."
"[A]n administrative agency is not required to believe any witness, even an expert . . . so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597; see King's Highway Associates v. Planning Zoning Commission, 114 Conn.App. 509 (2009). The determination of credibility of witnesses is one left to the sole discretion of the commission. Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 587, 821 A.2d 734 (2003). The plaintiffs' claim is procedural in nature and they neither argue nor allege that this action denied them the "right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536. The defendants' motion to strike paragraph 4(v) of the administrative appeal complaint in CV 07 4011845 and paragraph 6(v) of the administrative appeal complaint in CV 07 4012483 is granted.
Improper Consideration of Evidence
In paragraphs 4(w) and 4(y) of the administrative appeal complaint in CV 074011845, paragraphs 6(w), 6(y) and 6(aa) of the administrative appeal complaint in CV 07 4012483, and paragraphs 11(a) and 11(f) of the administrative appeal complaint in CV 074011735 the plaintiffs allege various claims of evidentiary impropriety. Specifically, the plaintiffs assert that the commission incorrectly relied upon hearsay testimony, used erroneous standards, relied on information outside the record and considered evidence after the hearing had concluded. The plaintiffs assert that the errors deprived them of a fundamentally fair hearing.
"Hearings before administrative agencies . . . [are] informal and conducted without regard to the strict rules of evidence . . ." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536. As such, there is no general prohibition against the admission of hearsay evidence at an administrative proceeding. Rogers v. Board of Education, 252 Conn. 753, 766, 749 A.2d 1173 (2000); see Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 687, 922 A.2d 330 (2007) (admission of hearsay permissible at administrative hearing); Salmon v. Dept of Public Health Addiction Services, 259 Conn. 288, 317 n. 20, 788 A.2d 1199 (2002) ("even hearsay, replete with its inherent untrustworthiness, may be considered in an administration hearing"); see Megin v. Zoning Board of Appeals, supra, 106 Conn.App. 614, (law does not require that an administrative decision be set aside because of receipt of preclusion of a single piece of evidence, even those in violation of due process).
Finally, the plaintiffs assert that the commission considered evidence outside the record. At the outset it should be noted that the defendant's dispute that such evidence was actually ever presented to the commission. "As a general rule an administrative agency cannot consider evidence submitted after conclusion of the public hearing. There is an exception to this rule for reports received from the agency's staff or consultants retained to report to the agency on some aspect of the application, as long as the report is based on evidence in the record." (Internal quotation marks omitted.) United Jewish Center v. Brookfield, Inc., Superior Court, judicial district of Danbury, Docket No. CV 05 4003563 (March 23, 2007, Thim, J.). "The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on non-record information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that has not previously presented at the public hearing in the matter." (Internal quotation marks omitted.) Megin v. Zoning Board of Appeals, supra, 106 Conn.App. 610.
"There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985). The plaintiffs have failed to articulate how any of these asserted issues have denied them their due process rights. The plaintiffs purport procedural errors for which they lack standing, pursuant to Pond View, LLC v. Planning Zoning Commission, supra, 288 Conn. 143. Accordingly, the defendants' motion to strike paragraphs 4(w) and 4(y) of the administrative appeal complaint in CV 07 4011845, and paragraphs 6(w), 6(y) and 6(aa) of the administrative appeal complaint in CV 074012483 is granted.
Bias
In paragraphs 4(j) and 4(z) of the administrative appeal complaint in CV 074011845; paragraphs 6(j), 6(z) and 6(bb) of the administrative appeal complaint in CV 07 4012483; and paragraph 4(j) of the administrative appeal complaint in CV 06 4010477, the plaintiff's claim that the commission failed to meaningfully consider the bias and improper conduct of the chairman of the commission who had, according to the plaintiffs, a personal interest in the hearing which affected the outcome of the proceeding. Undoubtedly, the principles of fundamental fairness require an "impartial and unbiased agency." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536. "While it is true that neutrality and impartiality of members of administrative boards and commissions are essential to the fair and proper operation of these authorities . . . a charge of bias must be supported by some evidence proving probability of bias before an official can be faulted . . ." (Internal quotation marks omitted.) Id., 536-37. "The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator . . . Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest." (Internal quotation marks omitted.) Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, 291 Conn. 242, 262 (2009). In light of this standard it becomes evident that such claims of actual administrative bias or prejudgment are "inherently fact-bound." Transportation General, Inc. v. Insurance Dept. of Connecticut, 236 Conn. 75, 77, 670 A.2d 1302 (1996); see Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, supra, 291 Conn. 263-66 (claims of impermissible bias requires that the plaintiff make an adequate factual record, as disqualifying bias may not be inferred simply from status alone).
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). As such, the plaintiffs' claims of bias pose questions of fact which cannot be resolved by way of a motion to strike. Booker v. Capozziello, Superior Court, judicial district of Fairfield, Docket No. CV 0540102111 (April 15, 2009, Arnold, J.). Accordingly, the defendants' motion to strike paragraphs 4(j) and 4(z) of the administrative appeal complaint in CV 07 4011845; paragraphs 6(z) and 6(bb) of the administrative appeal complaint in CV 07 4012483; and paragraph 4(j) of the administrative appeal complaint in CV 064010477 is denied.
Lack of Meaningful Participation
The plaintiffs make varying claims alleging that their rights to meaningfully participate in the hearing process were infringed upon. Specifically, in paragraphs 4(u) and 4(aa) of the administrative appeal complaint in CV 074011845; paragraph 6(u) of the administrative appeal complaint in CV 07 4012483; and paragraphs 11(b) and 11(c) of the administrative appeal complaint in CV 074011735, the plaintiffs allege that the intervenor's rights to introduce and challenge evidence or cross exam witnesses were restricted in violation of their due process rights to a fair public hearing. The common-law right to fundamental fairness in administrative hearings has long been recognized in this state. Grimes v. Conservation Commission, supra, 243 Conn. 273-74. "Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness." Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980); see Barry v. Historic District Comm., 108 Conn.App. 682, 705, 950 A.2d 1, cert. denied, 289 Conn. 943, 959 A.2d 1008 (2008). "Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . . Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence." (Citation omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, supra, 243 Conn. 274; see Megin v. Zoning Board of Appeals, supra, 106 Conn.App. 608-09.
The plaintiffs concede that paragraph 11(d) of CV 07 4011735 should be stricken as it alleges errors outside the scope of § 22a-19.
The asserted claims implicate the plaintiffs' right to a fundamentally fair hearing in that they challenge the right to have "an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536. Accordingly, the defendants' motion to strike paragraphs 4(u) and 4(aa) of the administrative appeal complaint in CV 074011845; paragraph 6(u) of the administrative appeal complaint in CV 074012483; and paragraphs 11(b) and 11(c) of the administrative appeal complaint in CV 074011735 is denied.
The defendants argue that the court should strike those procedural allegations contained in the plaintiff's administrative appeal complaint that he failed to raise in his notice of intervention. In so arguing, the defendants rely heavily upon Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978), for the proposition that a § 22a-19 intervenor's verified pleading sets the parameters of the issues which may be raised on appeal. While a plaintiff is generally limited to those issues set forth in his verified pleading, the court has determined that the plaintiffs retain standing to raise certain claims which implicate the fundamental fairness of the administrative proceeding. As those claims arose after the plaintiffs filed their verified pleadings, common sense dictates that they need not, and indeed could not, raise them in their verified pleading.
Conclusion
For the foregoing reasons the motion to strike is granted with respect to paragraph 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 06 4010477; paragraphs 6(g), 6(v), 6(w), 6(x), 6(y), 6(aa) and 9 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 074012483; paragraphs 4(g), 4(v), 4(w), 4(x), 4(y) and 7 of the administrative appeal complaint and paragraph (a) of the prayer for relief in CV 07 4011845; and paragraph 11(e) of the administrative appeal complaint in CV 07 4011735 and denied as to all other paragraphs.