Opinion
No. FST CV 08-5007128 S
October 20, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
This decision concerns a motion to dismiss for lack of subject matter jurisdiction. The defendant argues that the court lacks subject matter jurisdiction over the plaintiff's fourth count for violation of a zoning regulation of the Town of Westport. Specifically, it is argued that the doctrine of primary jurisdiction dictates that the Town has primary jurisdiction over a dispute concerning whether a zoning regulation has been violated. The Town's zoning enforcement officer has already issued a cease and desist order, which the Town claims brings this dispute under the Town's primary jurisdiction.
"Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 574, 800 A.2d 1102 (2002). "Ordinarily, a court should not act upon subject matter that is peculiarly within the agency's specialized field without giving the agency an opportunity to apply its expertise, for otherwise parties who are subject to the agency's continuous regulation may become the victims of uncoordinated and conflicting requirements." Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171 (1985). "[A] court may not refer a controversy within its jurisdiction to an agency under . . . [the primary jurisdiction] doctrine where the agency itself lacks jurisdiction; the court's jurisdiction in such cases is exclusive." Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 349, 363 A.2d 170 (1975).
"Primary jurisdiction is conceptually analogous to exhaustion of administrative remedies . . . Both are prudential doctrines created by the courts to allocate between courts and agencies and initial responsibility for resolving issues and disputes in a manner that recognizes the differing responsibilities and comparative advantage of agencies and courts . . . The doctrine of exhaustion of administrative remedies applies to situations in which initial jurisdiction over the claim is exclusively with an administrative agency . . . The precept of primary jurisdiction pertains to matters over which courts and administrative agencies have concurrent jurisdiction, the common law doctrine of primary jurisdiction is designed to guide a court in determining whether and when it should refrain or postpone the exercise of its own jurisdiction so that an agency may first answer some questions presented." (Citations omitted; internal quotation marks omitted.) In Re Leighton, 1998 Conn.Sup. 11454, 23 CLR 128 (1998).
"The doctrine of exhaustion of administrative remedies contemplates a situation where some administrative action has begun . . . [t]he doctrine requires a party to exhaust [administrative] remedies before seeking judicial relief and contemplates claims that are initially enforceable exclusively by administrative action . . . [W]here there is no administrative proceedings under way, the exhaustion doctrine has no application . . . In contrast, primary jurisdiction situations arise in cases where a [party], in the absence of pending administrative proceedings, invokes the original jurisdiction of the court to decide the merits of the controversy . . . The doctrine comes into play whenever enforcement of . . . [a] claim requires the resolution of issues that a regulatory scheme has placed within the special competence of an administrative body . . ." Soundview Water Improvement Co., Inc. v. Shea, Superior Court, judicial district of New London, Docket No. 529239 (November 21, 1994, Hurley, J.]) (13 Conn. L. Rptr. 66).
Because the zoning enforcement officer is already involved in the dispute, and because the process for the town to deal with the zoning violations has already begun, with the cease and desist order, the plaintiff's fourth count of the revised complaint is dismissed.
So Ordered.