Opinion
FSTCV156025758S
01-27-2016
Karen Sadik-Khan v. Robert E. Griffith et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Donna Nelson Heller, J.
The plaintiff Karen Sadik-Khan commenced this action, returnable July 28, 2015, against the defendants Robert Griffith (Griffith), Ellen Woefel (Woefel), William John Macmillan, a/k/a Ian Macmillan, Harbor Master, Town of Greenwich (Macmillan), and Eric Knott, Harbor Master, City of Stamford (Knott). In her substituted complaint (#120.00), filed August 21, 2015, the plaintiff seeks, inter alia, a declaratory judgment that her common-law littoral rights to continue to use and maintain a mooring seaward of her property, located at 41 Binney Lane in Old Greenwich, Connecticut (the Old Greenwich property), are superior to any rights of Griffith or Woefel (first count); a judgment quieting title to the seabed east of the Old Greenwich property (second count); monetary damages (third count); and a writ of mandamus (fourth count).
On August 19, 2015, Macmillan and Knott (collectively, the harbor masters) filed a motion to dismiss the complaint for lack of subject matter jurisdiction (#117.00), together with a memorandum of law in support thereof (#118.00). The plaintiff filed a memorandum of law in opposition (#123.00) on August 21, 2015.
The plaintiff's claims against the harbor masters were set forth in the first and third counts of the plaintiff's original complaint, which are the first and fourth counts in the substituted complaint, filed two days after the motion to dismiss. Our courts have recognized that " [w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause." (Internal quotation marks omitted.) Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 640, 879 A.2d 507 (2005) (citing and quoting Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996)). Where an amendment is filed as of right pursuant to Practice Book § 10-59, however, that complaint takes effect ab initio notwithstanding the prior filing of a motion to dismiss. Dauti v. Stop & Shop Supermarket Co., supra, 90 Conn.App. at 640-41. Accordingly, because the amendment here was filed within thirty days of the return date, the substituted complaint is the operative complaint for the purposes of the present motion.
The parties were before the court on the August 24, 2015 short calendar. The court heard argument from counsel, granted the parties leave to file supplemental memoranda, and reserved decision at that time. On September 11, 2015, the plaintiff filed a supplemental memorandum in opposition (#124.00) and the harbor masters filed a supplemental memorandum in further support of their motion to dismiss (#125.00). By order entered on December 8, 2015, the court granted the harbor masters' motion to dismiss on the ground that the court lacked subject matter jurisdiction because the plaintiff has failed to exhaust her administrative remedies. The court stated that this memorandum of decision articulating the order would follow (#117.01).
I
The plaintiff alleges the following in her substituted complaint. She is the owner of the Old Greenwich property, which abuts the Long Island Sound. The Old Greenwich property was purchased by the plaintiff and her late husband on September 18, 1974. In or about 1979, they installed a permanent mooring seaward from the Old Greenwich property. The mooring was located within the plaintiff's exclusive littoral rights. The mooring was maintained and in open and continuous use until it was removed in the winter of 2013-2014.
It remains unclear from the substituted complaint which of the defendants, if any, caused the removal of the mooring.
Griffith is the owner and sole member of Griffith Shellfish, LLC (Griffith Shellfish). Griffith, individually and through Griffith Shellfish, has been engaged in cultivation and harvesting of shellfish in the Long Island Sound since 1996. At some point between 1996 and 2011, Griffith obtained from Christopher Ford (Ford), the owner of certain shellfish grounds, the right to cultivate and harvest shellfish from those grounds in exchange for ten percent of the gross profits from the sale of any shellfish so harvested.
Woefel is Ford's former spouse. She has since acquired all rights, title, and interest in the shellfish grounds pursuant to the decree dissolving her marriage to Ford.
Macmillan is the harbor master for the Town of Greenwich. On April 23 2014, the plaintiff contacted Macmillan by email and asked to install two moorings off the shoreline of the Old Greenwich property. Macmillan forwarded the plaintiff's email to counsel for Griffith, who sent a letter and proposed agreement to the plaintiff on April 24, 2014. Griffith, through his counsel, demanded that the plaintiff accede to his right to remove the mooring within the limits of his and Woefel's shellfish grounds. He also demanded that she pay an annual fee of $200 for a revocable license to use and maintain each mooring within those grounds. Griffith contacted the harbor masters to inform them that he was the lessee of the shellfish grounds off the coast of the Old Greenwich property, and that he had not granted permission to the plaintiff to install and maintain any moorings.
On May 30, 2014, Macmillan informed the plaintiff that her application for mooring permits would not be approved because she lacked written permission from Griffith. In refusing to approve the plaintiff's application, the harbor masters relied on General Statutes § 26-157a, which prohibits the setting of any mooring within any shellfish grounds without the permission of the owner or the lessee of such grounds.
The harbor masters have moved to dismiss the complaint on the grounds that the court lacks subject matter jurisdiction because (i) the plaintiff has failed to exhaust her administrative remedies; and (ii) the action against them as state-appointed harbor masters is barred under the doctrine of sovereign immunity. In her memorandum in opposition, the plaintiff contends that no such administrative remedies exist, and that sovereign immunity is not applicable here because she is seeking only declaratory and injunctive relief.
II
Practice Book § 10-30 provides in pertinent part that " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). " [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." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [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 . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Citation omitted; internal quotation marks omitted.) Batts-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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." (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
III
The first count of the substituted complaint seeks a declaratory judgment that General Statutes § 26-157a(e), which governs the placement of moorings within shellfish grounds, is not applicable to the plaintiff, and that her common law littoral rights are superior to any claims otherwise, citing General Statutes § 26-249. The harbor masters maintain that the court lacks subject matter jurisdiction over the plaintiff's claim for declaratory relief because the plaintiff has failed to exhaust her administrative remedies. They argue that General Statutes § 4-175 requires the plaintiff to obtain a declaratory ruling from the appropriate state agency prior to bringing a declaratory judgment action in the Superior Court.
General Statutes § 26-249 provides in relevant part: " Each person who plants or cultivates oysters, clams or mussels, in any place lawfully designated, shall own them and also all other oysters, clams or mussels on such place, and have the exclusive right of taking up and disposing of them and of using such place for the purpose of planting or cultivating oysters, clams or mussels therein, which place shall be transferable by written assignment; but nothing herein contained shall affect the rights of any owner of lands in which there may be saltwater creeks or inlets, or which may be opposite or contiguous to such navigable waters . . ." (Emphasis added.)
In response, the plaintiff points out that the harbor masters have not identified the agency, if any, from which the plaintiff must seek a declaratory ruling. The plaintiff further contends that the position of harbor master does not constitute an " agency" under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166, et seq., and, therefore, § 4-175 is inapplicable.
In supplemental briefing, the harbor masters explain that the plaintiff is required to seek a declaratory ruling from either the state Department of Agriculture (DOA) or the Department of Energy and Environmental Protection (DEEP) to determine the applicability of General Statutes § 26-157a. The plaintiff argues, however, that DOA regulations only provide for advisory opinions which are distinctly different from declaratory rulings and that, in any event, the statutes in question are not found in Title 22 of the General Statutes, which governs the DOA. The plaintiff further maintains that harbor masters are the sole arbiters concerning the placement and setting of moorings, and that their decisions regarding mooring permits are not subject to either DOA or DEEP review.
It should be noted that the Department of Energy and the Environment (DEEP) has adopted regulations which allow for declaratory rulings; Regs., Conn. State Agencies § 22a-3a-4; and that even where there are no formal regulations, under certain circumstances, a letter to the appropriate state agency will suffice. See, e.g., Republican Party of Connecticut v. Merrill, 307 Conn. 470, 481, 55 A.3d 251 (2012) (" [U]nder certain circumstances, a letter to a state agency by a person seeking a determination regarding the applicability of a statute to specific facts may be treated as a petition for a declaratory ruling even if the person does not expressly invoke § 4-176.").
A
The court will turn first to the exhaustion doctrine and the relevant provisions of the UAPA. " [When] 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." (Citation omitted; internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 208, 105 A.3d 210 (2014). " Under [the exhaustion] 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" (Citation omitted; internal quotation marks omitted.) Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012). " The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . We have recognized such exceptions only infrequently and only for narrowly defined purposes . . ." (Citation omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 565, 821 A.2d 725 (2003).
Recognized exceptions to the exhaustion requirement include where " recourse to the administrative remedy would be futile or inadequate"; (Citation omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. at 565; or where there is " a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency." (Citation omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990). Neither exception is applicable here.
" The doctrine of exhaustion 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 . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review . . . Moreover, resolution of the issues at the administrative level may render judicial review unnecessary . . . A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene." (Citations omitted; internal quotation marks omitted.) Housing Authority v. Papandrea, 222 Conn. 414, 420-21, 610 A.2d 637 (1992). " Thus, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, supra, 315 Conn. at 208.
The UAPA provides for declaratory relief where a statute or regulation threatens, interferes with or impairs another's legal rights or privileges. General Statutes § 4-176(a) provides in pertinent part that " [a]ny person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency." Pursuant to General Statutes § 4-175, an individual may appeal a declaratory ruling to the Superior Court. " If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action ." (Emphasis added.) General Statutes § 4-175. " [W]hen a plaintiff can obtain relief from an administrative agency by requesting a declaratory ruling pursuant to § 4-176, the failure to exhaust that remedy deprives the trial court of subject matter jurisdiction over an action . . ." (Citation omitted.) Republican Party of Connecticut v. Merrill, supra, 307 Conn. at 478; see also Housing Authority v. Papandrea, supra, 222 Conn. at 423 n.6 (" [P]rocedures set forth in 4-176(a) must be exhausted before an action challenging the applicability of a regulation may be brought in the Superior Court . . .").
General Statutes § 4-176(e) provides that " [w]ithin sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action."
B
The plaintiff suggests that the issue here is one that implicates the principle of primary jurisdiction, not exhaustion. She further contends that where the issue presented is one of pure law, the doctrine of primary jurisdiction is not applicable, citing our Supreme Court's decision in Sharkey v. Stamford, 196 Conn. 253, 492 A.2d 171 (1985), and the decision of the federal court in Skubel v. Sullivan, 925 F.Supp. 930 (D.Conn. 1996), aff'd as modified, Skubel v. Fuoroli, 113 F.3d 330 (2d Cir. 1997), for this proposition. " The doctrine of exhaustion of administrative remedies contemplates a situation where some administrative action has begun, but has not yet been completed; where there is no administrative proceeding under way, the exhaustion doctrine has no application. In contrast, primary jurisdiction situations arise in cases where a plaintiff, in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy." Sharkey v. Stamford, supra, 196 Conn. at 255-56.
As our Supreme Court has explained, " the rationale underlying primary jurisdiction is in substance much the same as that which supports exhaustion . . . The doctrine of primary jurisdiction, like exhaustion, 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 . . . To allow a party seeking an injunction to bypass the entire process under certain circumstances would be to interject an unnecessary and potentially confusing element into an otherwise well defined area of the law . . . 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 . . . 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 . . . There are instances, however, in which the application of the doctrine will not serve these interests. The controversy may turn on a question of pure law which has not been committed to agency discretion." (Citations omitted; internal quotation marks omitted.) Id. at 256-57.
Irrespective of which of these two doctrines is applicable here, the UAPA and relevant case law make clear that a declaratory ruling must first be sought pursuant to General Statutes § 4-176 from the agency vested with jurisdiction over the matter prior to the commencement of a declaratory judgment action in the Superior Court. Even if the court were to assume that the issue is one of primary jurisdiction and involves only a question of law, the plaintiff has failed to demonstrate how asking the appropriate state agency for a declaratory ruling does not serve the interests of fostering an orderly process of administrative adjudication and judicial review and preserving the agency's role in administering its statutory responsibilities.
Contrary to the plaintiff's assertion, the issue presented is not purely one of law--the court notes that the plaintiff asks in her prayer for relief that the court make a factual determination regarding the existence of oysters and oyster beds seaward from the Old Greenwich property.
C
Because the application of General Statutes § 26-157a(e) threatens, interferes with and impairs the plaintiff's common law littoral rights with regard to the placement of moorings within the waters seaward from the Old Greenwich property, General Statutes § § 4-175 and 4-176 require the plaintiff to ask the agency or authority that has jurisdiction to review and issue a declaratory ruling before she commences an action in the Superior Court. " When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act--that is, to determine the coverage of the statute--and this question need not, and in fact cannot, be initially decided by a court." (Citation omitted; internal quotation marks omitted.) Polymer Resources; Ltd. v. Keeney, 227 Conn. 545, 558, 630 A.2d 1304 (1993). The question before the court, therefore, is which state agency or authority has jurisdiction to issue a declaratory ruling with regard to General Statutes § 26-157a(e).
The statute that the harbor masters relied upon in denying the plaintiff's mooring permits is found in chapter 490 of the General Statutes, governing fisheries and game. General Statutes § 26-157a(e) provides that " [n]o person shall set, tend or assist in setting or tending any lobster pot, trap or similar device for the catching of lobsters or set any mooring on any oyster bed without the permission of the owner or lessee of such bed." General Statutes § 26-157a(e). Based on the plain language of the statute, the intent of the legislature in enacting General Statutes § 26-157a(e) was to protect the owners or lessees of shellfish grounds from poaching and obstruction of the use of those grounds by the setting of moorings without the owner or lessee's permission. Chapter 490 vests the Commissioner of Energy and Environmental Protection (Commissioner) with the power and the duty to enforce the laws related to fish and wildlife, including fisheries and game. General Statutes § 26-3 (" The Commissioner of Energy and Environmental Protection shall enforce all of the laws relating to fish and wildlife of the state and shall possess all powers necessary to fulfill the duties prescribed by law with respect thereto . . ."). Accordingly, the issue of whether General Statutes § 26-157a(e) is applicable to the plaintiff's requested moorings falls within the jurisdiction of the DEEP and is, therefore, a matter for the Commissioner.
The plaintiff's argument that harbor masters, who are the sole arbiters for determining where and to whom to issue mooring permits, are not " agencies" under the UAPA is not on point. There is little dispute that harbor masters, being charged with the safe and efficient operation of the state's harbors and navigable waterways, have wide discretion in issuing permits for the placement of moorings. The issue here, however, concerns the protection of shellfish grounds under General Statutes § 26-157a(e), which is within the DEEP's jurisdiction. In the first count of the substituted complaint, the plaintiff seeks a declaratory judgment that General Statutes § 26-157a(e) is inapplicable to her moorings. She is not appealing the decisions of the harbor masters refusing to issue the requested permits. Therefore, the fact that the UAPA may not apply to harbor masters, or that no procedure exists to appeal a decision of a harbor master, is not relevant.
Harbor masters are appointed by the governor and occupy a unique position within the state government. Pursuant to General Statutes § 15-1, harbor masters are vested with " the general care and supervision of the harbors and navigable waterways over which they have jurisdiction, subject to the direction and control of the Commissioner of Transportation, and shall be responsible to the commissioner for the safe and efficient operation of such harbors and navigable waterways in accordance with the provisions of this chapter." General Statutes § 15-1. General Statutes § 22a-113r specifically provides that " no mooring or anchorage shall be placed in the harbor without a permit from the harbor master or deputy harbor master for the municipality." General Statutes § 22a-113r.
Accordingly, the issue of whether General Statutes § 26-157a(e) is applicable to the plaintiff's moorings requires a declaratory ruling from the Commissioner or the DEEP prior to the court's exercise of jurisdiction. Since the plaintiff has not obtained such a declaratory ruling, and neither the Commissioner nor the DEEP has been made a party defendant to this action, the court lacks subject matter jurisdiction over the plaintiff's claim for declaratory relief in the first count of the substituted complaint.
IV
The harbor masters also move for dismissal of the plaintiff's claims against them on sovereign immunity grounds. The harbor masters contend that they are state officials who fall within the umbrella of the state's immunity from suit, and that, based on the allegations in the substituted complaint, none of the recognized exceptions to sovereign immunity apply here. In response, the plaintiff argues that sovereign immunity does not prohibit declaratory or injunctive relief against a state official acting without or in excess of his statutory authority--which she alleges the harbor masters have done by refusing to grant the requested permits.
" [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007).
" There are [three] exceptions [to the state's sovereign immunity]: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). An action seeking declaratory relief against the state or its officials is expressly authorized by General Statutes § § 4-175 and 4-176. See Republican Party of Connecticut v. Merrill, supra, 307 Conn. at 476 (matter treated as an administrative appeal in which state had waived sovereign immunity under § 4-176).
An action seeking a writ of mandamus is similarly authorized by General Statutes § 52-485, which provides in pertinent part that " [t]he Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law." General Statutes § 52-485. A writ of mandamus may properly be sought against the state and its officials. See, e.g., C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. at 254 (mandamus action seeking to compel the commissioner of public works, governor and state comptroller to pay plaintiff under a settlement agreement pursuant to General Statutes § 3-7); Nielsen v. Kezer, 232 Conn. 65, 72, 652 A.2d 1013 (1995) (mandamus action seeking to compel the secretary of state to place plaintiff on ballot pursuant to General Statutes § § 9-390 and 9-407). " An action for a writ of mandamus . . . is available only in limited circumstances to achieve limited purposes. It lies to compel a public official to perform his duty." (Citation omitted.) Beccia v. Waterbury, 185 Conn. 445, 453-54, 441 A.2d 131 (1981). " The writ [of mandamus] is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Citation omitted; internal quotation marks omitted Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).
The fourth count of the substituted complaint seeks a writ of mandamus requiring the harbor masters to approve and issue permits to the plaintiff that allow her to set the requested moorings in the event that either the first or the second count of the substituted complaint is resolved in the plaintiff's favor.
In view of the court's conclusion that it lacks subject matter jurisdiction because the plaintiff has failed to exhaust her administrative remedies, the court need not decide whether the plaintiff has sufficiently alleged that the harbor masters acted in excess of their statutory authority or if an exception to the state's sovereign immunity for declaratory or injunctive relief applies under the circumstances. It would appear, however, that the causes of action set forth in the first count and the fourth count of the substituted complaint are authorized by statute permitting suit against the state and its officials; therefore, neither the first count nor the fourth count would be subject to dismissal on sovereign immunity grounds.
V
For the reasons set forth above, the issue of whether General Statutes § 26-157a(e) is applicable to the plaintiff's moorings requires a declaratory ruling from the Connecticut Department of Energy and Environmental Protection prior to the court's exercise of jurisdiction.
Accordingly, the harbor masters' motion to dismiss for lack of subject matter jurisdiction (#117.00) is GRANTED.