Opinion
No. CV 05-4016424 S
November 13, 2006.
MEMORANDUM OF DECISION RE MOTION TO DISMISS (Motion #101.00)
Before the court is a motion to dismiss filed by the defendant, town of Westport, on the grounds that the plaintiff, Timothy Romano, failed to exhaust his administrative remedies. A review of the court's file reveals the following prior procedural history. On February 21, the plaintiff filed a motion for default for failure to plead. On February 23, 2006, the defendant filed this motion to dismiss. Although the motion to dismiss had been filed, the defendant was nonetheless defaulted on February 27, 2006 for failure to plead. The defendant has not moved to set aside the default. On March 27, 2006, the plaintiff filed a memorandum in opposition to the motion to dismiss.
The motion for default for failure to plead does not appear in the judicial branch's internet case detail, but the motion is present in the official court file.
I. EFFECT OF DEFAULT
"When a defendant seeks relief from a default for failure to plead, and judgment has not yet been rendered or a hearing in damages claimed, the defendant has two options: it can file an answer or it can file a motion to set aside the default, which may also include a request for an extension of time to file its pleadings . . . Because it was in default, [the defendant] was barred from filing any motions except an answer pursuant to Practice Book § 17-32 or a motion to open the default pursuant to Practice Book § 17-42." (Citations omitted.) Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 637-38, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
In Dauti, the Appellate Court examined the impact of filing a motion for nonsuit when the party had been previously defaulted. Dauti v. Stop Shop Supermarket Co., supra, 90 Conn.App. 635-38. Additionally, the court noted similar outcomes in Superior Court cases that examined the filing of other motions after the party had been defaulted. Id., 638 n. 12.
Here, the defendant has filed a motion to dismiss claiming that the court lacks subject matter jurisdiction and the procedural posture examined by the court in Dauti is distinguishable. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Emphasis added; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). Additionally, "[t]he objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003). Therefore, even though the defendant has been defaulted, the issue of subject matter jurisdiction has been raised by the defendant's motion to dismiss and the court is obliged to determine if it has subject matter jurisdiction to hear the dispute.
SUBJECT MATTER JURISDICTION
The plaintiff's one-count complaint seeks a declaratory judgment and alleges the following. The plaintiff is a property owner in the town of Westport and sought approval for connection to an existing town sewer line. The plaintiff is located within 850 feet of an existing sewer line, but alleges that it is the policy of the defendant to require a positive report from the planning and zoning commission (commission), pursuant to General Statutes § 8-24, prior to granting an extension of a sewer line, defined as an extension greater than 150 feet. The plaintiff alleges that he sought the requisite approval, but the commission rendered a negative report on the grounds that the property would or might permit additional development in the area. The decision of the planning and zoning commission was appealed to, and sustained at, a Westport representative town meeting. The plaintiff alleges that the existing policy is arbitrary, contrary to law, burdensome and counterproductive and, as such, seeks a declaratory judgment declaring that the defendant's policy defining an extension to be one that exceeds 150 feet, without regard to individual circumstances, is illegal, arbitrary and in abuse of its discretion. The plaintiff also seeks a declaratory judgment that the policy and practice of requiring a positive report from the commission, in cases where the request is to a single property, is illegal, arbitrary and in contravention of the intent and purpose of § 8-24.
General Statutes § 8-24 provides in relevant part: "No municipal agency or legislative body shall . . . (4) locate or extend public utilities and terminals for water, sewerage . . . and other purposes, until the proposal to take such action has been referred to the commission for a report."
The defendant has moved to dismiss. The defendant argues that in order to seek a declaratory judgment, the plaintiff must first exhaust his administrative remedies. The defendant contends that the plaintiff twice sought approval from the water pollution control authority (WPCA) for extension of the existing sewer lines. On the first occasion, the WPCA approved the application, but imposed certain conditions, including obtaining a positive § 8-24 report from the planning and zoning commission. An unfavorable § 8-24 report, however, was issued. At that time, the WPCA policy required that an applicant first seek WPCA approval to connect to the sewer line before obtaining a positive § 8-24 report from planning and zoning. Thereafter, the WPCA policy was amended to require that applicants first seek planning and zoning § 8-24 approval before submitting the application for consideration by the WPCA. Instead of revising the first application, the plaintiff submitted a new application. Because of the revised policy, the new application was first sent to the planning and zoning commission. The planning and zoning commission again returned an unfavorable § 8-24 report. This decision was appealed by the plaintiff, pursuant to General Statutes § 8-24, to a representative town meeting which sustained the commission. The plaintiff did not, thereafter, seek WPCA approval because he was notified that the WPCA would not consider his application due to the unfavorable report.
The defendant argues that both the conditional approval of the first application by the WPCA and the decision by the WPCA not to consider the plaintiff's second application should have been appealed to the department of environmental protection pursuant to General Statutes § 22a-430(f). Because the plaintiff failed to appeal either action, the defendant argues that the plaintiff failed to exhaust his administrative remedies.
General Statutes § 22a-430(f) provides for a right of appeal to the department of environmental protection of "[a]ny permit denied or order issued by" the WPCA.
The plaintiff argues that he is not challenging any substantive decision of the WPCA, but he is challenging the negative report issued by the planning and zoning commission that was sustained by the Westport representative town meeting. The plaintiff contends that he abandoned his original application to the WPCA in favor of addressing the commission's concerns and submitting a new application. Why would he have appealed the initial WPCA decision approving his application when he thought he could easily comply with the conditions?
When the town's policy changed, now requiring him to first seek approval from the planning and zoning commission before proceeding to the WPCA, he did so with his new application. Since that commission rendered a negative report, his only option was to appeal to the Westport representative town meeting. There is no provision for any further appeal from either a planning and zoning report or from a representative town meeting. Additionally, he contends that since his second application was never acted upon by the water authority, it was impossible for him to appeal a negative report to the department of environmental protection since, in order to appeal, the water authority must have had an opportunity to rule on his application. Therefore, the plaintiff maintains that no administrative remedy remains because of the town's policy of requiring a positive report from the commission prior to going before the water authority.
Both parties have attached exhibits to their memoranda of law. Neither party, however, submitted an affidavit in support that referenced the attached exhibits. "[A] motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . 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." (Emphasis added; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). Practice Book § 10-31, which authorizes a motion to dismiss to be supplemented by "supporting affidavits as to facts not apparent on the record" makes no mention of additional exhibits both uncertified and not averred to in an affidavit. "This court will not, based on the record before it, decide whether the plaintiff was excused from pursuing further administrative relief, or whether the court lacks jurisdiction because of the failure of the plaintiff to exhaust his administrative remedies.
The motion to dismiss is, therefore, denied, without prejudice. Both the matter of the outstanding default and the appropriateness of the exhibits presented should be resolved prior to the court's further consideration of a renewed motion.