Cannata v. Department of Environmental Protection

• Decision Date: 17 July 1990
• Docket Number: No. 13877,13877
• Citation: 577 A.2d 1017,215 Conn. 616
• Court: Connecticut Supreme Court
• Parties: Michael CANNATA et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

Page 1017

577 A.2d 1017

215 Conn. 616

Michael CANNATA et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

No. 13877.

Supreme Court of Connecticut.

Argued May 10, 1990.

Decided July 17, 1990.

Elliott B. Pollack, with whom were Michael Kurs and, on brief, Lori J. Kremidas, Hartford, for appellants (plaintiffs).

Janet P. Brooks, Asst. Atty. Gen., with whom, on brief, were Clarine Nardi Riddle, Atty. Gen., and Joseph Rubin, Asst. Atty. Gen., for appellee (named defendant).

Katherine H. Robinson, Hartford, for appellee (defendant Conn. Fund for the Environment, Inc.).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ. SHEA, Associate Justice.

The dispositive issue in this appeal is whether a court or an administrative agency should decide in the first instance whether an agency has jurisdiction over a particular subject matter. The plaintiffs, Michael and Deborah Cannata, brought an appeal pursuant to General Statutes § 4-183 ¹ of the Uniform Administrative Procedure Act (UAPA) to the Superior Court from a decision by the named defendant, the department of environmental protection (DEP), requiring them to file an application for a permit to cut trees on their property within the stream channel encroachment lines established pursuant to General Statutes § 22a-342. ² In the appeal, they challenged the authority of DEP to issue such an order in view of the exemption for agricultural uses in General Statutes § 22a-349. ³ The trial court, sua sponte, dismissed the appeal for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to exhaust their administrative remedies. From that decision the plaintiffs appealed. We affirm the judgment of dismissal.

The following facts, found by the named defendant's hearing officer and the trial court, are undisputed. The plaintiffs own two hundred acres of land in Cromwell bordering the Connecticut River. In 1988, the plaintiffs sought permits from the commissioner of environmental protection (commissioner), pursuant to § 22a-342, for permission to develop a portion of their land for a subdivision and golf course within the stream channel encroachment lines. On June 21, 1988, the commissioner granted the plaintiffs permission to develop a subdivision but denied with prejudice permission to construct a golf course. The construction of a golf course would have involved cutting the flood plain forest within the stream channel encroachment lines. The commissioner's decision stated, inter alia, that, since 1976, flood plain forests have been recognized as critical habitats and that this particular flood plain forest is a resource of "special ecological significance, both in itself and through its function as a buffer to the adjacent Dead Man's Swamp, another critical habitat."

On July 5, 1988, the plaintiffs notified the commissioner that they intended to cut trees within the stream channel encroachment lines in order to expand their agricultural crop land. On July 8, 1988, the commissioner issued, ex parte, a cease and desist order, directing the plaintiffs to stop cutting trees because they had failed to apply for a permit as provided in § 22a-342. ⁴

On July 18 and 19, 1988, a hearing was held, pursuant to General Statutes § 22a-7, ⁵ before a hearing officer designated by the commissioner to determine whether the cease and desist order should be upheld. The Connecticut Fund for the Environment, Inc., intervened in support of the cease and desist order. On July 29, 1988, the hearing officer issued a final decision upholding the order until the plaintiffs filed a permit application and DEP had taken final action on it. From this decision, the plaintiffs appealed to the Superior Court pursuant to § 4-183.

In their complaint, the plaintiffs alleged that the hearing officer had incorrectly determined that a proposed agricultural use of land within the stream channel encroachment lines was subject to the permit process and that the final decision violated the plaintiffs' federal and state constitutional rights. ⁶ The trial court, sua sponte, found that it lacked jurisdiction because the plaintiffs had failed to comply with the exhaustion requirement of § 4-183 and dismissed the appeal. Upon a motion for rehearing and reconsideration, the court granted a rehearing but denied relief. The court's memorandum of decision on the motion stated that the plaintiffs had failed to show that the administrative remedy was futile or inadequate and to present any reason why they were not subject to the requirements of § 22a-342. This appeal followed.

I

The plaintiffs argue that the trial court erred in dismissing their appeal for failure to exhaust an administrative remedy because the applicability of the remedy, i.e., filing an application for a permit, raises a jurisdictional issue, thereby creating an exception to the exhaustion requirement. The plaintiffs maintain that, because the hearing officer found the proposed use of their land within the stream channel encroachment lines to be an agricultural use, they are exempt from regulation in accordance with General Statutes § 22a-349, and DEP is without jurisdiction to require them to file an application for a permit. In support of their claim they point to Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979) (Aaron I ), where we stated that "resort to administrative agency procedures will not be required when the claims sought to be litigated are jurisdictional." ⁷ According to the plaintiffs, therefore, the appeal was properly brought, pursuant to General Statutes § 4-183, to the Superior Court to determine the jurisdictional authority of DEP concerning the applicability of §§ 22a-342 and 22a-349. We conclude, however, that, under the circumstances of this case, the administrative agency must first be given the opportunity to determine its own jurisdiction.

The right to appeal a decision of an administrative agency exists only under statutory authority. As previously mentioned, the plaintiff in this case has appealed pursuant to § 4-183 of the UAPA. A plaintiff seeking a right to appeal under § 4-183 must exhaust all administrative remedies. " ' "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. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977)...." ' Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987)." Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); Pet v. Department of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988). "We have frequently held that where 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." Norwich v. Lebanon, 200 Conn. 697, 708, 513 A.2d 77 (1986). "Because the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter"; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); whether the trial court erred in dismissing the plaintiffs' claim because they failed to exhaust their administrative remedies.

In Greater Bridgeport Transit District v. Local Union 1336, supra, 211 Conn. at 439, 559 A.2d 1113, we stated that "[w]here there is in place a mechanism for adequate judicial review, such as that contained in § 4-183, '[i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. 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.' 2 Am.Jur.2d, Administrative Law § 332 and cases therein cited." The requirement of exhaustion of remedies in the context of agency jurisdiction finds further support in several federal cases holding that an agency initially should decide its own jurisdiction. Rogers v. Bennett, 873 F.2d 1387, 1392-93 (11th Cir.1989); Accion Social de Puerto Rico, Inc. v. Viera Perez, 831 F.2d 365, 371 (1st Cir.1987); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 918-19 (5th Cir.1983); Deltona Corporation v. Alexander, 682 F.2d 888, 893 (11th Cir.1982); Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir.1981); West v. Bergland, 611 F.2d 710, 719 (8th Cir.1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980); see also 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law § 49.02; Schwartz, Administrative Law § 8.34.

In Deltona Corporation v. Alexander, supra, for example, the plaintiff, Deltona Corporation, purchased approximately 10,300 acres of land in Marco Island, Florida, a large section of which it proceeded to develop by construction. Several years later, after a significant change in federal and state laws regarding the granting of certain permits, the plaintiff sought to obtain the necessary permits for the remainder of Marco Island. The district engineer of the Army Corps of Engineers denied the permits for construction on two undeveloped areas of the island because of the potential destruction of wetlands, bay bottom, fish and wildlife. This decision was subsequently upheld by the chief of engineers. The plaintiff filed suit in federal court for review of the Corps' denial of permits and the court granted summary judgment for the Corps, from which the plaintiff appealed.

On appeal, the plaintiff sought to challenge the extent of the Corps' jurisdiction over Marco Island. The Eleventh Circuit Court of Appeals, in upholding ...