Opinion
CV136041656S
01-19-2018
John GOLICZ et al. v. Thomas ROONEY et al.
UNPUBLISHED OPINION
OPINION
Brian T. Fischer, Judge
FACTS
The instant matter arises from a land use dispute between abutting property owners. On July 2, 2014, the plaintiffs, John and Julie Golicz, filed a three-count second amended complaint against the defendants, Thomas and Tammey Rooney, sounding in requests for temporary and permanent injunctive relief, and a cause of action to quiet title. On February 13, 2015, the defendants filed a three-count second amended counterclaim (counterclaim) against the plaintiffs sounding in requests for declaratory judgments and a cause of action to settle title and interest on the basis of adverse use. The counterclaim alleges the following facts. The parties are respective owners of property located on Grove Avenue in Madison, Connecticut. The counterclaim defendants (the Goliczes) own adjoining lots 118 and 119, and the counterclaim plaintiffs (the Rooneys) own lot 128.
For clarity, the court provides the procedural history regarding the operative counterclaim. On November 12, 2013, the defendants filed an answer, special defense, and counterclaim. On April 23, 2014, the Rooneys filed an amended counterclaim which made minor changes to counts one and two, and added the third count. On January 25, 2015, the Rooneys filed a second amended counterclaim which made changes only to count three.
At some point the Goliczes were advised by the zoning enforcement official (ZEO) in the Town of Madison (Madison) that lot 118 could not be used as a separate building lot because the dimensions of the parcel did not satisfy the Madison zoning regulation requirements. On June 5, 2013, the Goliczs filed a perimeter survey of lots 118 and 119, with a notation that the property line between the parcels was to be eliminated resulting in a portion of lot 119 being added to lot 118 so as to meet the town requirements. In a letter dated June 12, 2013, the Goliczes expressed their intent to develop lot 118 and construct a residential house. Also in this letter, the Goliczes expressed an intent to use a deeded right-of-way across the Rooneys’ property for vehicular access to lot 118 and demanded the Rooneys remove all impediments to such access.
The Rooneys allege that the division of lot 119 constituted an improper and unapproved subdivision in violation of General Statutes § 8-25 and Regulation § 2.1, and such a change required the approval of the Madison Planning and Zoning Commission (Commission). The Rooneys further allege that the development of lot 118 would violate Madison zoning regulations because the lot does not have the required frontage or unobstructed, exclusive right-of-way of at least twenty-five feet wide to a public street, and is not in compliance with zoning regulation § 2.4.
Section 2.1 of Madison’s subdivision regulations provides: " In accordance with the provisions of [General Statutes] § 8-25, no subdivision of land shall be made and no land in any subdivision shall be sold or offered for sale until a plan for such subdivision has been approved by the [Madison Planning and Zoning Commission]." The reference to General States § 8-25 is intended to acknowledge the controlling authority of the statute requiring local planning commissions to adopt regulations governing the subdivision of land before approving any application for a plan for subdivision.
Section 2.4 of Madison’s zoning regulations provides in relevant part that " [n]o building shall be built on any lot unless such lot has a frontage of at least [twenty-five] feet on a public street, or unless it has unobstructed, exclusive right of way at [twenty-five] feet wide to a public street."
Further, the Rooneys allege that when they acquired ownership and possession of their property, the entire right of way was crossed by a split rail fence at or near the boundary line of the Rooney property and lot 118. The Rooneys have maintained, repaired, and replaced the fence with the intention that it be a permanent structure and they assert that no pedestrian or motor vehicle has entered the Goliczes’ property from the Rooney property through the right of way. The Rooneys’ fence and uses of the right of way has been ongoing, open, and visible for a period exceeding fifteen years, and such actions have extinguished any easement or right of way the Goliczes have claimed. Additional facts will be provided as necessary.
On February 25, 2016, the Goliczes filed two motions: a motion to dismiss and a motion for summary judgment. Both motions are as to counts one and two of the counterclaim and both motions are accompanied by memoranda of law in support with exhibits. On April 22, 2016, the Rooneys filed memoranda in opposition to both motions with exhibits. On April 29, 2016, the Goliczes filed reply memoranda, and on May 2, 2016, the Rooneys filed surreply memoranda. On November 1, 2017, the Goliczes filed a supplemental brief in support of the motions. The matters were heard at short calendar on November 11, 2017.
DISCUSSION
I
MOTION TO DISMISS
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court’ deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
" Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. " [A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly ... [T]he question of subject matter jurisdiction is a question of law ... and, once raised, either by a party or by the court itself ... must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015).
The Goliczes argue that this court does not have subject matter jurisdiction over the declaratory judgment requests for three reasons: (1) the Rooneys have failed to exhaust their administrative remedies; (2) the Madison ZEO and the Madison Zoning Board of Appeals (ZBA) have primary jurisdiction to determine local zoning issues concerning the Golicz property, such as those alleged by the Rooneys; and (3) the counterclaims are moot because Madison approved the building permit. In response, the counterclaim plaintiffs argue that (1) they did not fail to exhaust administrative remedies; (2) the ZBA does not have primary jurisdiction over this matter; and (3) the counterclaims are not moot.
A
Exhaustion of Administrative Remedies
" 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." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " 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.) Id. " 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." (Citations omitted; internal quotation marks omitted.) O&G Industries, Inc. v. Planning and Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995). At oral argument, it was brought to the court’s attention that this count was devised when administrative remedies were still pending. As there are no more pending matters, the Goliczes concede that the Rooneys have exhausted their administrative remedies. For this reason, the motion to dismiss is denied as to this argument.
B
Primary Jurisdiction
The Goliczes argue that this court lacks subject matter jurisdiction over counts one and two because the ZEO and ZBA have primary jurisdiction over local zoning issues regarding the Golicz property. The Rooneys’ position is the exact opposite- that this court has subject matter jurisdiction over both counts because the ZBA does not have primary jurisdiction over this matter.
Traditionally applied in administrative law, " [t]he doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties." (Internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 574, 800 A.2d 1102 (2002). " The doctrine of primary jurisdiction applies where a plaintiff, in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy ... [The primary jurisdiction doctrine], like exhaustion [of administrative remedies], 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 ... [W]here 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 ... A failure to do so deprives the court of subject matter jurisdiction over the controversy." (Citations omitted; internal quotation marks omitted.) Dontigney v. Brown, 82 Conn.App. 11, 15, 842 A.2d 597 (2004).
The doctrine of primary jurisdiction applies when " the plaintiffs, prior to filing their complaint, had sought no administrative action," and provides " 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." Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171 (1985). " Although the two doctrines of primary jurisdiction and exhaustion of remedies are not congruent, it is true that neither can operate to oust a litigant from the courts where no adequate remedy may be had by resort to the administrative process. The doctrine of primary jurisdiction is invoked only to determine who will initially decide an issue ... it cannot operate to divest a court of its ultimate jurisdiction ... Primary jurisdiction is applied in order to ensure that an orderly procedure will be followed, whereby the court will ultimately have access to all the pertinent data, including the opinion of the agency." (Citations omitted; internal quotation marks omitted.) State ex rel. Golembeske v. White, 168 Conn. 278, 281, 362 A.2d 1354 (1975).
Although the court acknowledges that primary jurisdiction applies when " the plaintiffs, prior to filing their complaint, had sought no administrative action" ; Sharkey v. Stamford, 196 Conn. 256; the Rooneys argue that there was no administrative procedure available to address the subject issue prior to the plaintiffs commencing their court action. The certificate of zoning compliance (certificate) was issued after the Rooneys filed their counterclaim, making the procedure to appeal the certificate to the ZBA unavailable. " [A]s a general rule, jurisdiction once acquired is not lost or divested by subsequent events ... Loulis v. Parrott, 241 Conn. 180, 198, 695 A.2d 1040 (1997), overruled in part on other grounds, Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272, 802 A.2d 55 (2002); Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952); State v. One 1976 Chevrolet Van, 19 Conn.App. 195, 199, 562 A.2d 62 (1989) ... That rule, however, is not without exception. For example, [s]ubsequent events that render a case moot will result in the loss of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) State v. Taylor, 91 Conn.App. 788, 800, 882 A.2d 682 (2005). Because every presumption favoring jurisdiction should be indulged; Financial Consulting, LLC v. Commissioner of Ins., supra, 315 Conn. 226; this court obtained proper jurisdiction when the pleading was filed on November 5, 2013, before the certificate was issued on January 14, 2015, and before the appeal to the ZBA, which began on February 5, 2015. Once jurisdiction is acquired, it is not lost or divested by subsequent events. State v. Taylor, supra, 800. As such, the motion to dismiss is denied as to this argument. The issue of mootness will be addressed next.
C
Mootness
" A motion to dismiss properly attacks the jurisdiction of the court ... and mootness implicates a court’s subject matter jurisdiction." (Citation omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581-82 n.3, 92 A.3d 961, cert. denied, 314 Conn. 919, 100 A.3d 850 (2014). " Mootness is a threshold issue that implicates subject matter jurisdiction; which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties ... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties ... [The existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). " An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Bornemann v. Connecticut Siting Council, 287 Conn. 177, 181-82, 947 A.2d 302 (2008). " In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006).
The Goliczes argue that counts one and two are moot because Madison has approved the building permit application, which was upheld by the ZBA. The Superior Court, Ecker, J., subsequently dismissed the appeal on April 25, 2017. The Goliczes argue that here, the resolution of the counterclaims cannot afford any practical relief because Madison approved the building permit and subsequent appeals control the adjudication of the issues raised in the Rooneys’ counterclaim. The Goliczes point out that Connecticut courts have noted that a valid permit serves as prima facie evidence that an approved application complies with relevant land use regulations and, as such, the Rooneys have no practical relief available to them. In their supplemental brief in support of both motions, the Goliczes further argue that because the Superior Court, Ecker, J., has issued a memorandum of decision dismissing the administrative appeal, and the Rooneys’ petition for certification to appeal to the Appellate Court was also denied, this court should grant the present motion to dismiss as the counterclaims have been fully litigated and resolved.
The court takes judicial notice of the case as a matter of public record, captioned as the following: Rooney v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-15-6056196-S (April 25, 2017, Ecker, J.) (64 Conn.L.Rptr. 390). " The trial court has the power to take judicial notice of court files of other actions between the same parties." (Internal quotation marks omitted.) Hryniewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999); see also McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990) (court took judicial notice of court files from prior proceeding between parties even though files not formally made part of record at trial).
The Rooneys argue that the issue is not tied to a building permit for any specific plan for the building of a house on lot 118. The Rooneys argue that the issue is whether lot 118 was validly created in the first instance- an issue of law on which the court need not defer to any decision the ZBA might have made. In their surreply, the Rooneys further argue that there is no logic in distinguishing injunctive relief from declaratory relief, inasmuch as declaratory relief on issues of law is solely within a court’s power and that a court may reverse any legal conclusion rendered by a municipal agency because its review of such issues is de novo.
The Rooneys commenced the underlying action by a filing a counterclaim on September 12, 2013, seeking declaratory judgments that lot 118 was unlawfully created as it did not follow Madison subdivision regulation section 2.1 and the Goliczes did not receive approval from the Commission in count one, and that lot 118 did not comply with the requirements of Madison zoning regulation section 2.4 in count two. On January 14, 2015, the Madison building department issued a building permit for the Goliczes. In February 2015, the Rooneys filed an appeal related to the issuance of the building permit to the ZBA, raising the same issues as in counts one and two of their counterclaim. The ZBA held several hearings where the Rooneys and their counsel offered exhibits and made arguments regarding the issues. On July 7, 2015, the ZBA voted to deny the appeal. The ZBA determined lot 118 did not. require subdivision approval and that lot 118 satisfied the zoning regulations.
The ZBA unanimously passed the following resolution: " The February 9, 2015 appeal by Tom and [Tammey] Rooney from the decision of John De Laura, Madison [ZEO], with respect to Assessor’s Map 28, Lot 118, 2 Grove Avenue is hereby dismissed and the decision that such lot complies with the requirements of the Madison Zoning Regulations and is entitled to a building permit is upheld for the following reasons: 1. Substantial evidence was presented during the public hearing that the lot has adequate frontage on Liberty Street. The Madison zoning regulations do not require access to a lot be obtained where frontage is determined, merely that the lot have [twenty-five] feet of frontage on a public street. As long as the lot has available access and access is not legally precluded at the frontage location, the frontage requirement is met. 2. Substantial evidence was presented to the [ZBA] that Map 1816 was not a subdivision map since three or more parcels were not shown thereon for the purpose of sale or building development. The [ZBA] finds that the creation of Parcels D and E as shown on Map 1816 was for the purpose of transferring beach rights to the owners of Lots B and C by effectively merging the parcels with Lots B and C and not for the purpose of sale or building development. 3. The [ZBA] finds that since Map 1816 is not a map of subdivision or resubdivision, the lot line adjustments to lot 118 and 119 were lot line revisions that did not require approval from the [Commission] and Lot 118 is a valid building lot that complies."
On July 20, 2015, the Rooneys appealed the ZBA’s decision to the Superior Court arguing that the ZBA’s decision was arbitrary, illegal, and an abuse of discretion because lot 118 did not satisfy the requirements of section 2.4 of the Madison zoning regulations and lot 118 was not properly created as part of an approved subdivision plan pursuant to General Statutes § 8-25 and section 2.1 of Madison’s subdivision regulations. On April 25, 2017, the court, Ecker, J., issued a memorandum of decision in which he dismissed the appeal and upheld the decision of the ZBA. The Rooneys then petitioned for certification to appeal to the Appellate Court, and on July 26, 2017, the Appellate Court denied the petition for certification.
On May 3, 2016, the court, Agati, J., heard oral argument on the present motion to dismiss and motion for summary judgment. On July 6, 2016, the court, Agati, J., issued a memorandum of decision in which the court, sua sponte, stayed the action based on the pending administrative appeal involving the same parties. Judge Agati wrote: " [A]n administrative appeal of the [ZBA’s] decision parallels the present action. Where the defendants here seek declaratory relief by way of counterclaim regarding the plaintiffs’ alleged violations of Madison zoning and subdivision regulations and pertinent provisions of our General Statutes, the defendants, on appeal, seek an order sustaining their initial appeal to the [ZBA] on substantially similar grounds as their counterclaims. Although on appeal the Superior Court will be reviewing the conclusions of the [ZBA] for error, the core issue of the counterclaims here and of the parallel appeal is the same: whether the plaintiffs’ property is in violation of relevant municipal and state zoning laws and, therefore, the plaintiffs’ pursuit of developing their property cannot proceed because it is unlawful ... [S]taying the present action would minimize repetitive litigation on similar issues ... [T]he plaintiffs and the defendants are parties to the appeal; both parties would save on litigation costs by not pursuing simultaneous actions. In addition, neither party will be prejudiced. The defendants have availed themselves of the opportunity to challenge the validity of the plaintiffs’ building permit and, therefore, the plaintiffs’ compliance with zoning laws, through administrative channels ... Moreover, such judgment on either the plaintiffs’ or the defendants’ claims may muddle the issues or create the risk of collateral issues being raised on appeal." Golicz v. Rooney, Superior Court, judicial district of New Haven, Docket No. CV-13-6041656-S (July 6, 2016, Agati, J.).
Upon review of the appeal made to the ZBA, and the well-reasoned decision by. Judge Ecker, the present matter is now moot. The issues raised by the Rooneys in counts one and two of their counterclaim have been addressed. Regarding the subdivision issue, Judge Ecker wrote: " Before addressing the merits, one procedural issue requires attention. The governing legal framework plainly contemplates that subdivision decisions will be made by the municipal planning commission rather than a zoning officer or zoning appeal board. The present dispute did not pass through the [Commission] ... [T]he Rooneys [never] request[ed] the planning commission to disapprove the alleged subdivision of [lot 118]. See General Statutes § 8-26. As a result, we have a zoning board of appeals, rather than a planning commission, deciding whether a subdivision exists. This court is persuaded that the route taken by the parties in this respect, though perhaps irregular, does not raise any jurisdictional concerns." (Citation omitted.) Rooney v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV- 15-6056196-S (April 25, 2017, Ecker, J.) (64 Conn.L.Rptr. 390, 394). Further, the court stated that it " has concluded that there is substantial evidence supporting the [ZBA’s] determination that there was no ‘subdivision’ in 1972 ... Although not essential to the court’s holding, additional support for the [ZBA’s] determination is also found in the [ZBA’s] observation that parcels D and E were ‘effectively merg[ed]’ into parcels B and C, respectively, after serving their purpose. The ‘merger’ point does not appear to have been intended as a technical legal conclusion, but rather as a fitting and accurate description of what in fact occurred in 1972, and the practical effect of those events ... Id., 396. The court also noted that it " rejects the Rooneys’ ... claim that an illegal subdivision was created (or expanded) in 2013 and 2014, when the Goliczs purchased a portion of an abutting parcel, known as lot 119, for the purpose of adding sufficient area and frontage to lot 118 to satisfy the zoning requirements for a building lot in Madison. What the Rooneys seek to characterize as illegal subdivision ‘cuts’ made to lot 119 by the Goliczs were the type of land consolidation and lot-line revision that does not constitute the ‘subdivision’ of land under settled Connecticut law. See McCrann v. Town Plan and Zoning Commission, 161 Conn. 65, 70, 282 A.2d 900 (1971) (consolidation of lots not a subdivision); Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 765, 755 A.2d 329 (2000); see also R. Fuller, 9 Connecticut Practice Series, Connecticut Land Use Law and Practice, supra, § 10:9, at 319-2 (discussing Goodridge’s holding that lot-line adjustments of this nature do not require subdivision approval)." Id.
Section 8-26, among other things, authorizes planning commissions to approve, modify and approve, or disapprove plans for subdivisions already in existence but which were not submitted to the commission for required approval at the time created.
On the zoning regulation issue regarding frontage, the court, Ecker, J., noted the Rooneys’ position is that the Goliczes’ " paper frontage" will not actually be used to access the lot as they plan to use the right of way, and therefore, the property does not satisfy the minimum frontage requirements. The court found this argument unpersuasive. Id., 397. The court then referenced section 2.4 of the zoning regulations and defined " frontage" pursuant to section nineteen of the zoning regulations as " a continuous property line that is also a dividing line between a lot and a public or private roadway." Id. The court stated that " [t]he subject property has frontage measuring twenty-five feet on Liberty Street, a public roadway. This undisputed fact ends the inquiry under the applicable regulations." Id. The court continued: " The Rooneys argue that this interpretation of the regulations ignores the language in § 2.4 of the regulations, which states that the required frontage must be on a public ‘street.’ They claim that the word ‘street’ is defined in the regulations as ‘a public or private roadway or right of way, giving access to the lot.’ ... The Rooneys take this language to mean that ‘frontage,’ to satisfy the requirements of § 2.4, must ‘be on a roadway that provides an individual with the right, opportunity or ability to enter lot 118.’ ... The Rooneys have misquoted the definition of ‘street’ upon which their argument depends. Section [nineteen] of the regulations defines ‘street,’ not as ‘a public or private roadway or right of way, giving access to the lot,’ but, rather, as ‘a public or private roadway, or right of way giving access to the lot.’ The misplaced comma, no doubt inadvertent, cannot be permitted to obscure the plain meaning of the regulation. The [ZBA] properly determined that ‘frontage’ is not synonymous with ‘access’ under the regulations.
" As a fallback argument, the Rooneys contend that the construction relied on by the [ZBA] must be overturned because it leads to bizarre and unworkable results by ‘permitting land-locked parcels with [only] paper frontage.’ ... The court is mindful of the principles applicable to the interpretation of zoning regulations; see, e.g., Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006), and the specific canon, emphasized by the Rooneys in support of their argument regarding section 2.4, instructing that ‘[w]hen more than one construction [of the regulation’s language] is possible, we adopt the one that renders the enactment effective and workable and reject any that may lead to unreasonable or bizarre results.’ ... This argument cannot overcome two defects. First, the construction offered by the Rooneys is not based on a reasonably ‘possible’ construction of the regulations, as the Graff standard demands, much less does it rest on one of two ‘equally plausible’ interpretations of the regulation’s language, as required under the formulation used in Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). In fact, the Rooneys have failed to offer any plausible construction of the actual language of the regulation that would support their proposed meaning. Second, other than speculative musings offered by the Rooneys, there is no basis for the court to believe that the [ZBA’s] construction leads to bizarre or unworkable results. No evidence or scholarly commentary or other authority is cited in support of that bald assertion. The evidence in this particular case, moreover, does not implicate concerns about a ‘land-locked’ building lot. Under these circumstances, the court will not assume that the [ZBA’s] construction leads to bizarre results." (Citations omitted; emphasis in original.) Id.
The issues raised in counts one and two of the counterclaim are moot because this court cannot afford the Rooneys any practical relief as the issues have been litigated and decided by the hearings before the ZBA and the appeal to the Superior Court. See Batchelder v. Planning & Zoning Commission, supra, 133 Conn.App. 181 (appeal of motion to intervene denied as moot because issue litigated and decided following remand hearing and court decision); Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 84, 942 A.2d 345 (2007) (claim dismissed as moot because underlying claim already litigated); Jones v. Ricker, 172 Conn. 572, 576-77, 375 A.2d 1034 (1977) (appeal of motion to intervene denied as moot when underlying action had been fully litigated, and relief had been granted and executed). The Rooneys rely on Loulis v. Parrot, supra, 241 Conn. 198 for the proposition that an administrative proceeding post-dating the commencement of another properly brought action raising similar issues of law will not divest the court of jurisdiction in the earlier filed action. The Rooneys failed, however, to read the footnotes on that page of the Loulis case, which goes on to state that " [a]n exception to this general rule, however, is that subsequent events that render a case moot will result in a loss of subject matter jurisdiction." Loulis v. Parrot, supra, 198 n.11. For these reasons, the motion to dismiss is granted.
II
MOTION FOR SUMMARY JUDGMENT
In light of the court granting the Goliczes’ motion to dismiss because the claims are moot, the court lacks of subject matter jurisdiction and does not reach a decision regarding the motion for summary judgment.
CONCLUSION
Based on the foregoing, the motion to dismiss is granted as the issues in counts one and two are moot.