Aldin Assocs. Ltd. v. State
| Court | Appellate Court of Connecticut |
| Citation | 209 Conn.App. 741,269 A.3d 790 |
| Docket Number | AC 44102 |
| Parties | ALDIN ASSOCIATES LIMITED PARTNERSHIP v. STATE of Connecticut et al. |
| Decision Date | 11 January 2022 |
209 Conn.App. 741
269 A.3d 790
ALDIN ASSOCIATES LIMITED PARTNERSHIP
v.
STATE of Connecticut et al.
AC 44102
Appellate Court of Connecticut.
Argued May 12, 2021
Officially released January 11, 2022
Richard P. Weinstein, West Hartford, with whom was Sarah Lingenheld, West Hartford, for the appellant (plaintiff).
Daniel M. Salton, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare Kindall, solicitor general, and Matthew I. Levine, deputy associate attorney general, for the appellees (defendants).
Bright, C. J., and Moll and Harper, Js.
MOLL, J.
The plaintiff, Aldin Associates Limited Partnership, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, the state of Connecticut and Katie Dykes, the Commissioner of Energy and Environmental Protection (commissioner), claiming that the plaintiff's action seeking a writ of mandamus and money damages was barred by sovereign immunity. On appeal, the plaintiff claims that the court improperly granted the motion to dismiss because (1) sovereign immunity does not bar its claim for mandamus relief, (2) the state either expressly or by force of a necessary implication waived its sovereign immunity under General Statutes § 22a-449g, and (3) the plaintiff alleged a property interest protected under the takings clause of the Connecticut constitution. We conclude that the plaintiff's mandamus claim is not
barred by sovereign immunity and, accordingly, reverse in part the judgment of the court.
The following undisputed facts and procedural history are relevant to this appeal. In 1989, the General Assembly enacted legislation titled "An Act Concerning Underground Storage Tanks" (act), which established the underground storage tank petroleum clean-up fund (fund). See Public Acts 1989, No. 89-373 (P.A. 89-373), codified as amended at General Statutes (Rev. to 1991) § 22a-449a et seq. Initially, the act provided that the fund shall be credited one third of the tax imposed on gross earnings derived from the sale of petroleum products under General Statutes § 12-587 and that the fund is to be used by the commissioner to reimburse responsible parties for costs incurred in remediating leaking underground storage tanks.1 See P.A. 89-373, §§ 3, 4 and 10. A responsible party could apply to the clean-up fund review board (board) for reimbursement from the fund. See P.A. 89-373, §§ 7 and 10.
The act was amended several times during the years following its enactment in 1989. In 1994, the legislature replaced the fund with the underground storage tank petroleum clean-up account (account). See Public Acts 1994, No. 94-130, § 6. In 2009, the General Assembly repealed General Statutes § 22a-449b, which required that a
portion of tax revenue collected under § 12-587 be deposited in the account, and replaced the account with the underground storage tank petroleum clean-up program (program) to reimburse responsible parties
"within available appropriations ...." Public Acts, Spec. Sess., June, 2009, No. 09-3, §§ 423 and 513, codified at General Statutes (Supp. 2010) § 22a-449c.
In 2012, the General Assembly replaced the board with the commissioner and cancelled the program. See Public Acts, Spec. Sess., June, 2012, No. 12-1, §§ 252 and 262, codified at General Statutes §§ 22a-449c and 22a-449s. General Statutes § 22a-449t established deadlines for applicants to apply for reimbursement under the program based on the applicant's status as a municipal, small station, mid-size station, large station, or other applicant. Section 261 of Public Act 12-1, which was codified at General Statutes (Rev. to 2013) § 22a-449r, established a reverse auction system. This system was applicable "to all applications submitted by mid-size or large station applicants before, on or after June 15, 2012, including, but not limited to, applications for which payment or reimbursement has been ordered by the commissioner but has not been made. ..." General Statutes § 22a-449r (c) (2).
Under the reverse auction system, "priority for payment or reimbursement shall be given to those applicants who ... agree to accept the greatest reduction in the amount ordered for payment or reimbursement by the commissioner under the program ...." General Statutes § 22a-449r (c) (4). Section 22a-449r (c) (2) (A) provides in relevant part: "In the fiscal year beginning July 1, 2012, no payment shall be made to mid-size station applicants in excess of thirty-five cents on each dollar the commissioner orders to be paid or reimbursed under the program. In the fiscal year beginning July 1, 2013, and each fiscal year thereafter, such amount shall increase by ten cents on each dollar per fiscal year and in such years no payment or reimbursement shall be made in excess of the amount in effect for such fiscal year. ..."
The plaintiff owns and operates more than five gasoline facilities where underground storage tanks used for petroleum products are located and, therefore, is a responsible party and a mid-size station applicant under the act.2 The plaintiff remediated some of its properties pursuant to the act and submitted several applications to the Department of Energy and Environmental Protection seeking reimbursement for the costs it incurred. At the time the plaintiff commenced this action, some of the plaintiff's applications had been approved and paid, at least one application had been approved in 2009 but remained unpaid, and the commissioner had failed to act on the plaintiff's remaining applications.
In 2019, the plaintiff brought this action against the defendants, claiming that the commissioner has unduly and unreasonably delayed the processing and payment of its applications for reimbursement under the program. In the first count of its complaint, the plaintiff sought a writ of mandamus ordering the commissioner "to pay approved claims and to adjudicate those pending claims [that] have not been adjudicated." In the second, fourth, and fifth counts, the plaintiff sought monetary damages on the basis of its allegations that
the commissioner failed to reimburse it and failed to administer the program within a reasonably timely manner as required by the act (count two); violated the equal protection clause under article first, § 20, of the Connecticut constitution (count four); and violated the due process clause under article first, § 10, of the Connecticut constitution (count five). In the third count, the plaintiff claimed that the failure to pay any approved but unpaid applications for reimbursement under the
act, as well as any pending applications that should be approved, violated the takings clause of article first, § 11, of the Connecticut constitution.3
The defendants moved to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff's claims were barred by sovereign immunity. The defendants argued that counts one, two, four, and five of the plaintiff's complaint are claims for money damages that are barred by sovereign immunity because there is no statutory waiver of sovereign immunity and because the plaintiff did not obtain permission from the claims commissioner to bring an action against the state. See General Statutes § 4-147 ("[a]ny person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim" requesting permission to sue state). The defendants noted that the plaintiff previously had filed a claim with the claims commissioner based on the same facts as those alleged in the present action and that the claims commissioner denied the claim. As to the third count of the complaint, the defendants claimed that the plaintiff failed to allege a property interest sufficient to support its takings claim.
The plaintiff filed an objection to the motion to dismiss, along with an affidavit of Mark R. Temple, a licensed environmental professional who had prepared and filed applications for reimbursement on behalf of the plaintiff. The plaintiff argued that sovereign immunity does not bar its mandamus and takings claims and that the state waived its sovereign immunity pursuant to § 22a-449g, which provides that any applicant aggrieved by a decision of the commissioner may appeal to the Superior Court. In the affidavit, Temple asserted
that the plaintiff elected to receive 95 percent reimbursement of its approved claims in August, 2018, and that there are available appropriations from which the defendants should pay the plaintiff.
After a hearing, the court granted the defendants’ motion to dismiss. The court determined that there was no statutory waiver of sovereign immunity, although it analyzed General Statutes...
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