Opinion
No. CV 02 0069404
April 28, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Chester Dobrowski, the zoning enforcement officer for the town of Brooklyn and a defendant in this action, moves to dismiss the first count of the plaintiffs' revised complaint for lack of subject matter jurisdiction. In particular, Dobrowski moves to dismiss the plaintiffs' claims against him on the basis that the plaintiffs have failed to exhaust their administrative remedies and, as to him, this matter is moot.
On the revised complaint, the plaintiffs are: Nicholas G. Sarantopoulos, Natalie M. Sarantopoulos, William Marrone, Jeanne Marrone, Peter Theodor, Alice Theodor, Carl Reidemestar, Steve Dune, Irene Dune, Harold Curtis, Winifred Curtis, Alan Kaulback, Linda Kaulback, Steven Townsend, Marjorie Townsend, Thure M. Oja and Irja E. Oja.
This motion to dismiss arises from the plaintiffs' three-count revised complaint, dated July 10, 2003, against the codefendants Chester Dobrowski, Marion Riseman and Paul Sansoucy. In count one, the plaintiffs allege that Sansoucy is presently engaged in the quarrying business on Riseman's premises, which is located in an RA zone that authorizes gravel banks by special permit. They allege that neither Riseman nor Sansoucy has ever secured such a special permit. The plaintiffs allege that they "on various and numerous occasions since June 5, 2002, have filed complaints with the defendant Dobrowski concerning illegal blasting at the Riseman quarry, and have further complained as to Riseman's lack of a special permit, and Sansoucy's illegal operation and lack of a special permit authorizing quarrying on the Riseman premises." (Plaintiffs' Amended Complaint, Count 1, ¶ 7). The plaintiffs further allege that Dobrowski has refused to act upon the plaintiffs' complaints and has totally ignored the same. As a result of his failure to act, the plaintiffs allege that Dobrowski has deprived them of any meaningful administrative appeal, and any such administrative appeal at this juncture would be futile and inadequate. Finally, the plaintiffs allege that they will suffer irreparable harm unless Dobrowski acts upon the plaintiffs' complaints. The plaintiffs seek a temporary and permanent injunction directing Dobrowki to act upon the plaintiffs' complaints and investigate the same in good faith.
On November 26, 2003, Dobrowski filed a motion to dismiss count one of the plaintiffs' revised complaint and a memorandum in support thereof. Dobrowski's arguments are two-fold. First, he argues that the court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies. Dobrowski argues that the plaintiffs should have taken an appeal to the zoning board of appeals of the town of Brooklyn. Dobrowski contends that although the Connecticut Supreme Court has recognized exceptions to the exhaustion doctrine, no such exception applies in this circumstance because he is the zoning enforcement officer, not a private landowner acting in violation of the zoning regulations. Second, Dobrowski argues that the plaintiffs' claims against him are moot. He argues that because the court will decide whether Riseman and Sansoucy's activities have violated the local zoning regulations, it would be anomalous for him to then undertake an investigation in which he would have no power to overrule whatever findings the court, by then, would have made.
In their memorandum in opposition filed on January 14, 2004, the plaintiffs argue that they did not need to exhaust their administrative remedies and that their claims against Dobrowski are not moot. The plaintiffs argue that they are not required to exhaust their administrative remedies because Dobrowski's failure to take any affirmative action to stop activities by private individuals in violation of the zoning regulations was conduct of a nature for which there was no adequate relief at the administrative level. By not fulfilling his duties to enforce the town of Brooklyn's zoning regulations, the plaintiffs argue that Dobrowski is in violation of the zoning regulations himself and, thus, subject to an injunction. Finally, the plaintiffs argue that their claims are not moot as to Dobrowski, because an actual controversy exists between the plaintiffs and Dobrowski as to whether the quarry activities carried on by the codefendants are illegal and in violation of Brooklyn's zoning regulations. They argue that the matter in controversy can be adjudicated by the court and will result in practical relief for the complainants if the zoning enforcement officer is ordered to investigate and/or issue a cease and desist order as to the operation of the quarry.
Proper Motion
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 781 (2002). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001).
Failure to Exhaust Administrative Remedies
Dobrowski argues that the plaintiffs' case against him should be dismissed because the plaintiffs failed to exhaust their administrative remedies by not appealing to the town of Brooklyn's zoning board of appeals. The Connecticut Supreme Court has held that the failure of a party to exhaust administrative remedies implicates the court's subject matter jurisdiction: "It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003).
Although Connecticut courts have held that a plaintiff must exhaust his or her administrative remedies before a court has subject matter jurisdiction over the case, Connecticut courts have also held that an appeal to a zoning board of appeals is only an adequate remedy when an administrative agency or an agency enforcement officer has rendered a decision. "When an administrative body fails to act, the proper course of action is not an appeal, but to compel action through a writ of mandamus." Gordon v. Easton Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0357241 (December 21, 2001, Cocco, J.) ( 31 Conn. L. Rptr. 159, 161). In Gordon, the court held that the planning and zoning commission's failure to comply or otherwise respond to the plaintiff's request for the issuance of a cease and desist order did not constitute a decision and thus was not appealable to a zoning board of appeals. Id., 160-61. Moreover, in Palmieri v. Zoning Board of Appeals, 32 Conn. Sup. 625, 627, 349 A.2d 731 (App.Sess. 1975), the appellate session of the Superior Court stated that "[b]efore the plaintiff could avail himself of the right to appeal . . . it was necessary that the defendant render a decision because only a decision is appealable."
Dobrowski's argument that the plaintiffs failed to exhaust their administrative remedies fails because he never issued a decision that would be appealable to Brooklyn's zoning board of appeals. Dobrowski's failure to comply or otherwise respond to the plaintiffs' complaints does not constitute a decision. See Gordon v. Easton ZBA, 31 Conn. L. Rptr. 160-61. Without the rendering of a decision, the plaintiffs had no standing to appeal to the zoning board of appeals. Thus, Dobrowski's argument that the plaintiffs have failed to exhaust their administrative remedies is not applicable in this circumstance.
Mootness
Dobrowski next argues that the plaintiffs' allegations should be dismissed because they are moot with respect to him. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Citations omitted; internal quotation marks omitted.) Wallingford v. Dept of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 79 Conn. App. 384, 390, 830 A.2d 767 (2003). "The determination of whether a claim has become moot is fact sensitive . . ." Ayala v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996).
Dobrowski claims that the plaintiffs' claims against him are moot because any action he would take would be anomalous once the court rules on the legality of the actions of Riseman and Sansoucy. At this juncture, however, there has been no decision as to whether the activities of Riseman and Sansoucy are in violation of the zoning regulations. Because no decision has been rendered, an actual controversy still exists with regard to Dobrowski and, therefore, mootness is not implicated.
Accordingly, the court denies Dobrowski's motion to dismiss for lack of subject matter jurisdiction, because the plaintiffs had no right to appeal to the zoning board of appeals and this matter is not moot as to Dobrowski.
By the Court:
Foley, J.