Fort Trumbull Conservancy, LLC v. New London

• Decision Date: 03 July 2007
• Docket Number: No. 17753.,17753.
• Citation: 925 A.2d 292,282 Conn. 791
• Court: Connecticut Supreme Court
• Parties: FORT TRUMBULL CONSERVANCY, LLC v. CITY OF NEW LONDON et al.

925 A.2d 292

282 Conn. 791

FORT TRUMBULL CONSERVANCY, LLC v. CITY OF NEW LONDON et al.

No. 17753.

Supreme Court of Connecticut.

Argued February 14, 2007.

Decided July 3, 2007.

Scott W. Sawyer, Cranston, RI, with whom was Nicholas Grimaldi, Jr., Providence, RI, for the appellant (plaintiff).

David P. Condon, with whom were Jeffrey T. Londregan and, on the brief, Edward B. O'Connell and Thomas J. Londregan, New London, for the appellees (defendant New London Development Corporation et al.).

William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendant department of economic and community development et al.).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

The primary issue in this appeal¹ is whether the trial court properly determined that the plaintiff, Fort Trumbull Conservancy, LLC, lacks standing under the Connecticut Environmental Protection Act (act), General Statutes § 22a-14 et seq., to bring this action against the defendants, the city of New London (city), the New London planning and zoning commission (commission), the New London Development Corporation (corporation), the state department of economic and community development (department), and the state office of policy and management (office). The trial court granted the defendants' motions to dismiss the plaintiff's complaint seeking, inter alia, to enjoin the implementation of a municipal development plan in the Fort Trumbull area of New London on the ground that the plaintiff had failed to establish standing to seek relief under General Statutes § 22a-16,² and rendered judgment dismissing the action. We reverse the judgment of the trial court.

This action is the latest in a series of actions brought by the plaintiff seeking to enjoin the implementation of the municipal development plan and related actions. See Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 832 A.2d 611 (2003); Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 829 A.2d 801 (2003); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003). The factual background of these cases is set forth in Fort Trumbull Conservancy, LLC v. New London, supra, at 423, 829 A.2d 801, as follows. "In May, 1998, the New London city council designated the corporation a private, nonprofit organization, as the development agency for the city. Thereafter, the corporation applied to the department for financial support for a development plan for the Fort Trumbull area of New London. Among other things, the development plan called for the condemnation of property and demolition of buildings located in that area. After performing an environmental impact assessment, the department determined that the development plan could have a significant impact on the environment. The corporation therefore prepared an environmental impact evaluation in accordance with General Statutes (Rev. to 1997) § 22a-1b (b).³ The department made the evaluation available for public inspection and comment⁴ in accordance with General Statutes (Rev. to 1997) § 22a-1d.⁵

"Following the public comment period, the department rendered a decision recommending that the proposed development plan be implemented. Thereafter, the [office] conditionally approved the environmental impact evaluation.⁶ In January, 2000, the city and the [New London] redevelopment agency adopted the development plan. The corporation, acting on behalf of the city, subsequently condemned and demolished certain properties located in the Fort Trumbull area.

"The plaintiff, a limited liability corporation formed, among other reasons, `to preserve, conserve, maintain and protect the continuity, historic importance, environment and legal status of [the Fort Trumbull] area,' initiated [an] action in July, 2000, alleging numerous violations of federal, state and local law in connection with the creation, approval and implementation of the development plan. The plaintiff sought various legal and equitable remedies, including declaratory relief and an injunction prohibiting the defendants⁷ from implementing the plan.

"The defendants filed motions to dismiss, claiming that the plaintiff lacked standing to challenge their actions regarding the development plan. In particular, the defendants claimed that the plaintiff had failed to establish: (1) statutory aggrievement under § 22a-16 inasmuch as the complaint merely repeated the language of that statutory provision and did not set forth any facts indicating how the defendants' activities were likely to result in `unreasonable pollution, impairment or destruction' of the state's natural resources; General Statutes § 22a-16; and (2) classical aggrievement, inasmuch as the complaint contained insufficient allegations of any direct and specific injury. The trial court agreed with the defendants' claims and, therefore, granted the motions to dismiss and rendered judgment thereon dismissing the plaintiff's complaint." Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. at 426-29, 829 A.2d 801.

On appeal to this court, the plaintiff claimed that its allegations, that the defendants had failed to follow certain procedural requirements in adopting the development plan and that the plan called for demolition without consideration of "`feasible and prudent alternatives,'" were specific enough to support its claim of environmental harm under § 22a-16. Id., at 431, 829 A.2d 801. We concluded that it was "not evident how the defendants' failure to follow certain procedural requirements in adopting the development plan or to consider alternatives to the demolition of buildings in the Fort Trumbull area [was] likely to cause such harm." Id., at 433, 829 A.2d 801. Accordingly, we concluded that the trial court properly had determined that the plaintiff had failed to establish statutory standing under § 22a-16. Id., at 433-34, 829 A.2d 801.

In May, 2005, the plaintiff initiated the present action in the judicial district of New London, again seeking, inter alia, a permanent injunction prohibiting the defendants from implementing the development plan. In a two count complaint, the plaintiff again alleged that the office's approval of the environmental impact evaluation and the city's adoption of the development plan were invalid as the result of certain procedural defects. In count one, alleging "unreasonable likelihood of harm," the plaintiff made numerous specific allegations concerning the negative impact that the implementation of the development plan would have on the water, land and air resources in the Fort Trumbull area.⁸ In count two, alleging "`per se' environmental harm and violation of [the act]," the plaintiff alleged that the defendants had violated a variety of state statutes and regulations and repeated its allegations of environmental harm.

Thereafter, the defendants filed motions to dismiss the complaint on the grounds that: (1) the plaintiff lacked standing; (2) the case was moot because the procedure leading to the approval of the environmental impact evaluation had terminated in 1999, 80 percent of the pollution mitigation recommendations contained in the evaluation already had been implemented and 98 percent of the funding contributed by the state already had been expended; and (3) the action had been brought in an improper venue under § 22a-16.⁹ See General Statutes § 22a-16 (where state is defendant in action brought pursuant to § 22a-16, action shall be brought in judicial district of Hartford). The plaintiff objected to the motions to dismiss and, in support of its objection, submitted an affidavit by its expert, Robert S. DeSanto, a certified environmental professional, in which he stated that, based on his personal knowledge, there was a factual foundation for the allegations of unreasonable harm to the environment contained in the plaintiff's complaint.

The trial court concluded that "[t]he plaintiff [had] not set forth facts to support an inference that unreasonable pollution of a natural resource will result from the defendants' activities." According to the court, although the plaintiff had alleged that various pollutants were being deposited in the Thames River and adjacent water bodies, it had "[failed] to allege with any degree of particularity or precision how or where the contaminants are being deposited." Rather, the court concluded, "[t]he plaintiff's allegations of pollution are speculative and hypothetical. The plaintiff has presented nothing more [than] fuzzy effusions and has failed to allege a colorable claim of conduct resulting in harm to one or more of the natural resources of the state. . . ." Accordingly, the court concluded that the plaintiff did not have statutory standing under § 22a-16. Moreover, because the plaintiff had failed to allege any direct harm to its members, it had not established associational standing.¹⁰ The court therefore granted the defendants' motions to dismiss without reaching the defendants' other claims.

This appeal followed. The plaintiff claims on appeal that the trial court improperly dismissed its complaint on the ground that it had failed to make a colorable claim of unreasonable pollution under § 22a-16. The defendants dispute this claim and, as alternate grounds for affirmance, reassert their claims that the action should be dismissed because: (1) 80 percent of the recommendations in the environmental impact evaluation have been implemented, 98 percent of the state funds have been expended, and the case is therefore moot; and (2) the action was brought in an improper venue. We conclude that the plaintiff has statutory standing and that the claim is not moot. We further conclude that, although the action was brought in an improper venue, it should not be dismissed on that ground, but should be transferred to the judicial district of Hartford.

I

We first address the plaintiff's...