Berlin Batting Cages, Inc. v. Planning & Zoning Commission

• Decision Date: 15 April 2003
• Docket Number: (AC 22282).
• Court: Connecticut Court of Appeals
• Parties: BERLIN BATTING CAGES, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF BERLIN.

76 Conn. App. 199

821 A.2d 269

BERLIN BATTING CAGES, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF BERLIN.

(AC 22282).

Appellate Court of Connecticut.

Argued December 3, 2002.

Officially released April 15, 2003.

Foti. Flynn and West, Js.

E. Timothy Sullivan, Jr., for the appellant (defendant).

Vincent T.McManus, Jr., for the appellee (plaintiff).

Opinion

FOTI, J.

The defendant, the planning and zoning commission of the town of Berlin (commission), appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Berlin Batting Cages, Inc. On appeal, the commission claims that the court improperly (1) denied its motions to dismiss because the appeal was moot and because the plaintiff failed to exhaust its administrative remedies, (2) permitted the plaintiff to amend its complaint and (3) concluded that it lacked a legal basis on which to deny the plaintiff s site plan application. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues raised in the commission's appeal. On June 12, 1996, the plaintiff corporation, which owns real property in Berlin, filed with the commission an application seeking site plan approval to construct a go-cart track on the rear portion of its property.¹ The plaintiffs original application sought approval to construct a track for use by gasoline powered go-carts. On July 14, 1996, the commission, reasoning that the application did not conform to certain zoning regulations, denied the application.

On July 29, 1996, the plaintiff appealed from the commission's denial to the Superior Court.² The court later granted the plaintiff's request to amend its appeal, thereby permitting the plaintiff to challenge the validity of the regulations on which the commission relied in denying the application. The court conducted a hearing and, on May 14, 1999, issued a memorandum of decision in which it reversed the commission's decision. The court concluded that the commission had relied on regulations that were not valid. Accordingly, the court remanded the matter to the commission with direction to consider the application in light of only the regulations that were valid and in effect at the time of the filing of the application.

Both parties petitioned this court for certification to appeal from the trial court's decision.³ On June 23, 1999, this court granted both of the petitions. On July 8, 1999, the plaintiff filed its appeal and, on July 9, 1999, the commission filed its appeal. On October 20, 1999, this court, sua sponte, ordered that the appeals be dismissed because they did not challenge an appealable final judgment.⁴

On July 19, 1999, after the parties had filed their appeals to this court, the plaintiff filed another site plan application with the commission. In that application, the plaintiff sought approval of a site plan to construct a track on which to operate electric powered, as opposed to gasoline powered, go-carts. On October 14, 1999, the commission approved the application.

On July 6, 2000, after having reconsidered the original application in accordance with the trial court's remand order, the commission again denied the application for approval to construct and to operate a track for the use of gasoline powered go-carts. On July 14, 2000, the plaintiff appealed to the Superior Court from the commission's denial.⁵ On February 27, 2001, the commission filed a motion to dismiss the appeal on the ground that the court lacked jurisdiction to hear the appeal because the controversy between the parties was moot. The court denied the motion and denied the commission's subsequent motion to reconsider its denial. On May 8, 2001, the commission filed another motion to dismiss on the ground that the court lacked subject matter jurisdiction because the plaintiff had failed to exhaust available administrative remedies. The court also denied that motion.

After conducting a hearing, the court filed a memorandum of decision on June 6, 2001. The court sustained the plaintiff's appeal and directed the commission to issue the requested permit. The commission thereafter petitioned this court for certification to appeal. This court granted the petition and, on August 31, 2001, the commission filed the present appeal. Additional facts will be set forth as they become necessary in the context of the claims raised in the commission's appeal.

I

The commission first claims that the court improperly denied its motions to dismiss the appeal on the grounds (1) that the issues raised therein were moot and (2) that the plaintiff had failed to exhaust its administrative remedies. We disagree.

A claim that an appellant in an administrative appeal seeks review of issues that are moot or that such appellant has failed to exhaust its administrative remedies implicates the court's subject matter jurisdiction and may be raised at any stage of the proceedings. See, e.g., Johnson v. Dept. of Public Health, 48 Conn. App. 102, 108, 710 A.2d 176 (1998); Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505-506, 671 A.2d 844 (1996). Such a claim is a proper subject of a motion to dismiss. Practice Book § 10-30 et seq. A party may challenge a court's subject matter jurisdiction at any time, and "whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings." (Internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987).

"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, 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. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 610-11, 793 A.2d 215 (2002). Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court's resolution of that question is plenary. Id., 611. We will address separately each of the commission's motions to dismiss.

A Mootness

The commission, in its February 27, 2001 motion to dismiss, claimed that because it approved the plaintiff's application to construct and to operate an electric powered go-cart track, the controversy between the parties no longer existed, rendering the appeal moot. The commission posited that the plaintiff, having obtained approval of the subsequent application, had "waived whatever benefit it may have derived from the earlier application [and that] its development rights are controlled by the subsequent approval. . . ."

"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . 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.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002). "[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . If no practical relief can be afforded to the parties, the appeal must be dismissed." (Internal quotation marks omitted.) Id.

We agree with the court that the appeal before it was not moot. The fact that the defendant granted the plaintiff's site plan application for a track for electric powered go-carts did not deprive the court of the ability to fashion for the plaintiff practical relief in its appeal from the denial of its site plan application for a track for gasoline powered go-carts. Simply stated, we are persuaded by the fact that those proposed uses are not mutually exclusive. In opposing the motion to dismiss, the plaintiff submitted the affidavit of Michael Nelson, the plaintiff's president. Nelson averred that after receiving approval of the application to construct a track for electric powered go-carts, he began construction of the track. He further averred that after significant inquiry of suppliers, he believed that electric powered go-carts were neither technologically nor commercially feasible. Essentially, he represented that, having obtained permission to construct a track for electric powered go-carts, he still wanted to use the track for gasoline powered go-carts, which he described as readily available, safe, manufactured by reliable suppliers and relatively inexpensive. In short, he described the defendant's approval of the plaintiff's plan to operate electric powered go-carts as "an approval that we can't use."

In light of those averments and, on the basis of the nature of the controversy itself, we are unable to conclude that the commission's approval of the plaintiff's applications precluded the court from affording the plaintiff practical relief. Such relief, in the form of approval of the applications to construct a track for gasoline powered go-carts, would permit the plaintiff to use the track for the purpose for which it sought such approval in the first instance. Nothing about the commission's approval of the electric powered go-cart application rendered the relief sought in the administrative appeal either impractical or inconsequential.

The commission relies primarily on Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992), in support of its claim that the appeal was moot. Gagnon is factually distinguishable. The appellant in Gagnon appealed to the Superior Court from a planning...