Opinion
AANCV136013854S
11-28-2017
RECYCLING, INC. v. CITY OF MILFORD et al.
UNPUBLISHED OPINION
OPINION
Stevens, J.
STATEMENT OF THE CASE
This declaratory judgment action was instituted by the plaintiff, Recycling, Inc., against the defendants, the City of Milford (the city), Milford Planning and Zoning Board (the zoning board), and David B. Sulkis. Sulkis is the city planner and the administrator of the planning and zoning office of the city. On March 4, 2014, the plaintiff filed its third amended complaint. This complaint seeks a determination whether an amendment to General Statutes § 22a-208b, authorizing local zoning regulation of solid waste facilities, applies retroactively and allows Milford zoning regulations to preclude the plaintiff’s use of a license to operate a limited processing facility. Pending before the court is the defendants’ motion to dismiss the case, or in the alternative, motion for stay. For the following reasons, the motion to dismiss is denied and the motion to stay is granted.
The pleadings and the parties’ submissions establish the following facts relevant to the defendants’ motions. The plaintiff owns property at 990 Naugatuck Avenue in Milford. On December 8, 2008, the plaintiff received a permit from the state Department of Energy and Environmental Protection (DEEP), which allowed the plaintiff to operate a " limited processing facility" under General Statutes § 22a-208a. Pursuant to the permit, the plaintiff was authorized to operate a facility that receives, stores, and processes only recyclable material. On July 7, 2009, the zoning board amended its regulations concerning the area where the property is located, and prohibited certain activities practiced by the plaintiff.
Prior to the zoning board’s amendment of its regulations, the plaintiff’s proposed use was permitted subject to the issuance of a special permit by the board. As a result of the amendment, however, the plaintiff’s proposed use would be prohibited. In February 2010, the plaintiff instituted a declaratory judgment action against the defendants to determine whether the zoning board’s regulations were preempted by the state statutory provisions regarding the licensing of solid waste facilities pursuant to General Statutes § 22a-208a. The court, Hiller, J., issued a decision on November 2, 2010, holding that under the state’s solid waste statutes, the state occupied the entire field of regulation in the area of solid waste management, and as a consequence, state law preempted the zoning board’s regulation of such facilities .
Judge Hiller’s decision was modified by legislative action. On March 6, 2012, the General Assembly amended § 22a-208b. The amendment provides that local zoning agencies may regulate solid waste facilities under their respective zoning authority, but cannot enact a blanket prohibition against such uses in a municipality. Based on this amendment to § 22a-208b, the defendants maintain that the July 7, 2009 zoning regulations continue to apply to preclude the plaintiff’s operation of a limited processing facility. In the present action, the plaintiff seeks a declaratory determination that the amendment to § 22a-208b is prospective only, and that any retroactive application would unjustly abrogate a vested right belonging to the plaintiff in its license issued by DEEP to operate a solid waste facility.
After the institution of the present action, the DEEP revoked the plaintiff’s license to operate the limited processing facility. This revocation was based on misrepresentations made in the license application and on failures to comply with the permit terms. The plaintiff filed an appeal of this revocation to the Superior Court. The trial court affirmed DEEP’s decision and the plaintiff filed an appeal of this decision. This appeal remains pending in the Appellate Court.
On August 30, 2016, the defendants moved to dismiss the present case on the grounds that the case is not ripe and the plaintiff lacks standing. Alternatively, the defendants moved to stay this action pending the outcome of the appeal of DEEP’s revocation of the plaintiff’s license. On October 18, 2016, the plaintiff filed a memorandum of law in opposition to the defendants’ motions. On January 5, 2017, the defendants filed a reply memorandum. The court heard oral argument on the matter on July 31, 2017.
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 ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Mangiafico v. Farmington, 173 Conn.App. 178, 187-88, 163 A.3d 631 (2017).
I
STANDING
" The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss ... [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate 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 the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Citation omitted; internal quotation marks omitted.) St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808-09, 12 A.3d 852 (2011). Regarding standing to request a declaratory judgment, " our rules of practice provide that the court will not render a declaratory judgment on the complaint of a person unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations which requires settlement between the parties ... As we have long recognized, a person is not entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity." (Citation omitted; internal quotation marks omitted.) Connecticut Ass’n of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613-14, 508 A.2d 743 (1986).
The defendants argue that the plaintiff lacks a sufficient interest in the requested declaratory judgment because it no longer holds any permit that could be affected by the interpretation of the statutory amendment. Specifically, they argue that without a valid, existing general permit, the property is clearly subject to the regulations’ prohibition on any new recycling use in the district, thus negating any need for the court to interpret the amendment. On the other hand, the plaintiff contends that because it is the owner of the property at issue, it has standing in the case, and that aggrievement is properly based upon the plaintiff’s status as an owner.
The court agrees with the plaintiff that it has standing to seek declaratory relief. The plaintiff owns the property at issue, and according to the defendants, the plaintiff is currently prohibited from using it in a certain manner. The plaintiff has taken action to operate a recycling business and has filed an application with DEEP in order to do so which is presently being litigated. Even if this appeal fails, another application could be filed by the plaintiff or a subsequent owner, and the property’s use, marketability and value are directly affected and impacted by Section 22a-208b. The plaintiff unquestionably has a specific interest in the subject matter of this controversy and in how this controversy will affect its property interests. Therefore, the court finds that the plaintiff has standing to maintain this action.
II
RIPENESS
The issue of ripeness also implicates the court’s subject matter jurisdiction. Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 85, 952 A.2d 1 (2008). " [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Id., 86-87. Ripeness requires that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged. Id., 87-88.
The defendants argue that this action is not ripe because in light of the plaintiff’s pending appeal of DEEP’s revocation of the plaintiff’s permit, any decision on the prospective or retroactive application of § 22a-208b is hypothetical. Specifically, the defendants contend that until the Appellate Court issues a final judgment that concludes that the DEEP’s action was improper, this matter is " unripe." According to the defendants, no harm would befall the plaintiff if this case was dismissed on ripeness grounds because the plaintiff would be able to bring a new declaratory judgment once the DEEP appeal is complete.
The plaintiff asserts that the defendants’ arguments are misplaced because they focus on the DEEP permit instead of the issue alleged in the complaint, namely that the amended statute § 22a-208b should be applied prospectively, not retroactively. The plaintiff insists that this question remains salient even if the appeal is lost.
The court agrees with the plaintiff. The outcome of the appeal does not determine or control whether this court can issue a declaratory judgment on the meaning of a statute that pertains to the plaintiff’s property. See generally, Weiner v. Clinton, 100 Conn.App. 753, 755-56, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007) (where the Appellate Court rejected a claim that a pending appeal from the entry of a default judgment against a plaintiff client rendered premature the plaintiff’s malpractice claim against the defendants based on the default). As alleged, the plaintiff seeks the court to determine whether the amended statute is prospective or retroactive. " [W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiff’s personal rights ... it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625-26, 822 A.2d 196 (2003). Although, the plaintiff currently does not have a valid permit to use its property as a recycling plant, the plaintiff has a legitimate, present interest in the manner in which the amended statute applies to its property and its ability to operate a recycling facility.
III
MOTION TO STAY
As an alternative to dismissal, the defendants move this court to stay the case pending the outcome of the Appellate Court decision. " In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court ... [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." (Citations omitted; internal quotation marks omitted.) Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 311-12, 975 A.2d 715 (2009).
" In making a determination as to whether to issue a stay, the court is required to balance the equities ... While approving a general balancing of the equities test as the benchmark for granting or denying a motion for stay, [our Supreme Court] also recites a list of non-exclusive factors that a court may consider including the likely outcome on appeal, whether the movant faces irreparable prospective harm from the enforcement of the judgment, and the effect of the delay occasioned by a stay upon the non-moving parties." (Citations omitted; internal quotation marks omitted.) Host America Corp. v. Ramsey, Superior Court, judicial district of New Haven, Docket No. CV-06-4019497-S (March 7, 2007, Lager, J.).
In considering these aforementioned factors on granting a stay, and in the reasonable exercise of the court’s discretion on this issue, the court finds that it is proper and judicious to grant a limited stay of the present action. Although the pendency of the appeal of DEEP’s administrative action does not implicate the court’s jurisdiction as alleged by the defendants, the disposition of the appeal may very well provide a more informed basis to evaluate the plaintiff’s arguments and interests. This stay, however, should be limited and definite because the present action has already been pending for some time. Thus, the case is continued to a scheduling conference in February 2018, at which time the court will proceed to issue scheduling orders for the adjudication and disposition of this action.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is denied, and the motion for stay is granted in part. Caseflow is directed to schedule the case for a scheduling conference in February 2018.
So ordered this 28th day of November 2017.