Opinion
No. FST CV 084045017S
May 8, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
On August 28, 2008, the plaintiffs, Mitchell Ross and Kerry Ross, commenced by service of process an appeal and a declaratory judgment from a decision of the Darien environmental protection commission (EPC). The plaintiffs appeal pursuant to General Statutes §§ 8-8 and 22a-43. The original defendants included the EPC, the Darien planning and zoning commission, the Darien zoning board of appeals and the town of Darien. The Attorney General later filed an appearance on behalf of the State of Connecticut's department of environmental protection (DEP).
Count one, which appeals a decision of the EPC, alleges the following facts. The plaintiffs are the record owners of two parcels in Darien, Connecticut. On March 19, 2008, the plaintiffs filed applications with the EPC seeking to remove their parcel from the town's inland wetlands and watercourses map. Although the EPC initially approved the applications they subsequently issued a conditional approval and permit to the plaintiffs. The plaintiffs appeal the decision to issue a conditional approval, asserting that it was arbitrary, capricious and an abuse of discretion. The plaintiffs allege that the EPC asserted jurisdiction, and imposed conditions, over proposed demolition and construction work, outside the scope of regulated activities as defined in Connecticut's Inland Wetland and Watercourses Act, General Statutes § 22a-36 et seq., and the Darien inland wetlands and watercourses regulations. Finally, the plaintiffs allege that the EPC required the plaintiffs to pay for expert consultants in connection with their application without statutory authority.
In count two the plaintiffs seek a declaratory judgment that portions of the Darien inland wetlands and watercourse regulations are invalid as they exceed the scope of the regulatory authority vested in municipal inland and watercourse agencies. The third count alleges that the Darien zoning regulations schedule of fees is invalid because it exceeds the authority vested in municipal land use agencies to charge application fees, and purports to authorize the director "to decide arbitrarily whether to impose upon applicants additional expense . . . without any reasonable or objective standards for determining when outside consultants should be retained." The plaintiffs seek a judgment declaring the supplement to the Darien zoning regulations schedule of fees void. In the prayer for relief, the plaintiffs also seek a refund of all sums paid to the commission for consultants.
All the defendants, with the exception of the DEP, have jointly filed a motion to strike counts two, three, and paragraphs (c), (d), (e), and (f) in the prayer for relief. The defendants assert that the plaintiffs' requested relief is not cognizable in an administrative appeal. Finally, the defendants contend that the plaintiffs have failed to join the DEP as a necessary party in connection with count two, and have failed to give notice to the proper parties to this action.
Legal Discussion
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
"Whenever any party wishes to contest . . . the legal sufficiency of [a] complaint. because of the absence of any necessary party or . . . the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). Furthermore, "whether a court should grant declaratory relief is properly decided by a motion to strike." Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 293, 596 A.2d 414 (1991).
The first issue presented is whether the plaintiffs are entitled join an appeal with a declaratory judgment. The defendants argue that counts two and three should be stricken as requests for "declaratory judgments are misjoined with statutory proceedings such as administrative appeals." The plaintiffs counter that a challenge to the validity of the Darien inland wetlands and watercourses regulations may be coupled with an appeal from the EPC's decision.
While traditionally our courts have expressed reluctance to condone joining an administrative appeal and a declaratory judgment, that has recently changed. See Shenkman v. Borough of Fenwick Historic District Commission, Superior Court, judicial district of Middlesex, Docket No. CV 03 0102997 (July 26, 2004, Silbert, J.) (37 Conn. L. Rptr. 545). "A general challenge to the validity of a zoning regulation was historically required to be brought as a declaratory judgment action rather than an administrative appeal from an application submitted pursuant to those regulations." Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989). Our Supreme Court has since abandoned the Cioffoletti rule requiring that general attacks on the validity of legislation be brought in the form of declaratory judgment actions instead of substantive appeals, noting the overriding importance of honoring the legislature's grant of statutory avenues of appeal with regard to agency legislation. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 581-82, 715 A.2d 46 (1998); Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn.App. 199, 213, 821 A.2d 269 (2003) (challenge to a regulation may be combined with a substantive appeal rather than pursued in a separate declaratory action). The current view of our courts suggests a tendency to permit claims for declaratory relief to be brought with an administrative appeal recognizing that to do so is essentially pleading in the alternative, a well accepted procedure. Shenkman v. Borough of Fenwick Historic District Commission, supra, 37 Conn. L. Rptr. 545; Lewis v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 98 0333278 (May 21, 1999, Radcliffe, J.) (24 Conn. L. Rptr. 588), rev'd on other grounds, Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 771 A.2d 167 (2001) (challenge to the validity of a land use regulation, coupled with an administrative appeal, comports with the procedural posture of Stafford Higgins Industries); Aiudi v. Haddam Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 06 4004620 (March 19, 2007, Iannotti, J.) (direct challenge to subdivision regulations in an administrative appeal was proper). Accordingly, the defendants' motion to strike counts two and three, and the corresponding prayers for relief (c), (d) and (e) is denied.
The defendants additionally argue that the plaintiffs, in their prayer for relief (f), may not claim a refund for consultants' fees because an administrative appeal cannot encompass a monetary award. The plaintiffs contend that reimbursement of an improper fee is a proper remedy.
An administrative appeal pursuant to §§ 8-8 and 22a-43 seeks judicial review by the Superior Court from an adverse decision of an administrative board. "A plaintiff's administrative appeal serves the remedial purpose of reviewing the propriety of the board's decision." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 207, 719 A.2d 465 (1998). "An administrative appeal cannot provide a monetary remedy to the plaintiff." Id.; see also Avonside, Inc. v. Zoning Planning Commission, 153 Conn. 232, 239-40, 215 A.2d 409 (1965) (action for monetary damages regarding claim of illegal fee should not be brought as a declaratory judgment). The motion to strike paragraph (f) of the prayer for relief is therefore granted.
The defendants further argue, alternatively, that the plaintiffs failed to join either the DEP or neighboring landowners as necessary parties to the action. The plaintiffs contend that the DEP has been joined as a party to this action as is evidenced by the Attorney General's appearance and answer filed on behalf of the commission. They also argue that the other property owners are not entitled to notice and, moreover, that the defendants have not identified the claimed missing parties.
"All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof." Practice Book § 17-56(b). General Statutes § 3-125 provides in relevant part: "The Attorney General shall have general supervision over all legal matters in which the state is an interested party . . . He shall appear for the state . . . and for all heads of departments and state boards, commissioners . . . in all suits and other civil proceedings . . . in which the state is a party or is interested, or in which the official acts and doings of said officers are called in question . . . in any court . . . It is undisputed that the Attorney General has filed an appearance on behalf of the commissioner of the department of environmental protection and has since filed an answer to the appeal. The purpose of the notice requirement is to apprise the defendant of notice of the appeal. "[N]otice is an essential element of due process, inasmuch as the right to be heard, ensured by the guarantee of due process, has little reality or worth unless one is informed that a matter is pending and can choose for himself or herself whether to appear or default, acquiesce or contest . . ." Reed v. Branford Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. 03 0475239 (January 7, 2004, Corradino, J.) (36 Conn. L. Rptr. 392, 394). It is clear that the practical objectives of this requirement have been fulfilled in this instance in light of the subsequent filing of an appearance by the Attorney General on behalf of the commissioner. As such, the fundamental intent of the statute has been satisfied. Eureka, LLC v. Ridgefield PZC, Superior Court, judicial district of Danbury, Docket No. CV 07 4007262 (November 15, 2007, Shaban, J.). It is inconsequential whether it was the commissioner or the Attorney General who received actual notice, as the Attorney General is statutorily authorized to appear on behalf of the department, notice has been accomplished in accordance with the statute.
Moreover, General Statutes § 22a-43(a) provides that notice of an appeal "shall be served upon the inland wetlands agency and the commissioner . . . The commissioner may appear as a party to any action brought . . ." The language of § 22a-43 makes it clear that the purpose of notice to the commissioner of environmental protection is so that the commissioner may appear as a party to any action. "The statute, as plainly written, does not provide that the commissioner `ought' to be joined but leaves that decision to the commissioner." Demar v. Open Space Conservation Commission, 211 Conn. 416, 427, 559 A.2d 1103 (1989).
Accordingly, the defendants' Motion to Strike count two, on the further ground of failure to join a necessary party, and the requested declaratory relief as to count two is denied.
As their final basis for their motion to strike count two, and related declaratory relief the defendants contend that the plaintiffs have failed to comply with the notice requirements of § 17-56(b). Practice Book § 10-39(b) provides in relevant part that: "[a] motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action." Failure to sufficiently provide the requisite name and address of any potentially necessary party requires that the court deny the defendant's motion to strike. See Big East Equipment Co., Inc. v. Ohio Cas. Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 05 4015860 (July 3, 2006, Zoarski, J.T.R.) (41 Conn. L. Rptr. 576, 577); Herbasway Laboratories v. Zhou, Superior Court, judicial district of New Britain, Docket No. CV 01 0512689 (April 27, 2004, Peck, J.); Broadnax v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 98 0412193 (May 16, 2000, Levin, J.) (failure to comply with Practice Book 10-39(b) prohibits granting of a motion to strike).
In the present case, the defendants merely enumerate landowners in the town of Darien "abutting or within 100 feet of the following watercourses" who have not been given notice. The defendants then provide a list of watercourses but do not provide any information as to the identity and residence of the interested persons. The defendants argue that they are identified as general property owners bordering specified watercourses. The Practice Book makes it clear, however, that the defendant must provide "such information as the moving party has as to the identity and residence of the missing party or interested person . . ." Practice Book § 10-39(b). Simply stating a geographic area is insufficient to appraise the opposing party of an interested person's identity and residence as is required by § 10-39(b). Accordingly the defendants' motion to strike counts two, and the corresponding declaratory relief, is denied.
Conclusion
For the foregoing reasons the defendants' motion to strike counts two and three, and the related claims for relief, is denied except as to prayer for relief (f), which is granted.