Fort Trumbull Conservancy, LLC v. City of New London

• Decision Date: 01 May 2012
• Docket Number: AC 32556
• Court: Connecticut Court of Appeals
• Parties: FORT TRUMBULL CONSERVANCY, LLC v. CITY OF NEW LONDON ET AL.

FORT TRUMBULL CONSERVANCY, LLC v. CITY OF NEW LONDON ET AL.

AC 32556

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 16, 2012

officially released May 1, 2012

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(Appeal from Superior Court, judicial district of

Hartford, Complex Litigation Docket, Miller, J.)

Scott W. Sawyer, with whom was Lorna Dicker, for the appellant (plaintiff).

Jeffrey T. Londregan, for the appellees (defendant city of New Haven et al.).

Edward B. O'Connell, with whom, on the brief, was Mark S. Zamarka, for the appellee (defendant New London Development Corporation).

Rupal Shah Palanki, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendant department of economic and community development et al.).

Opinion

GRUENDEL, J. The plaintiff, Fort Trumbull Conservancy, LLC, appeals from the judgment of dismissal rendered by the trial court. Its principal contention is that the court improperly dismissed its declaratory and injunctive 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 plaintiff further claims that the court abused its discretion in denying its motions to reconsider, to reargue, to open the judgment and to submit additional evidence. We affirm the judgment of the trial court.

This action is but the latest episode in the saga of litigation between the parties. See Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 943 A.2d 420 (2008); Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 925 A.2d 292 (2007); 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 following background is relevant to this appeal. In the late 1990s, ''[t]he [city], through [the corporation], established a municipal development plan for the Fort Trumbull area of the city. The Fort Trumbull area is a ninety acre peninsula in the southeast region of [the city] bordering the Thames River. Historically, it has supported residential, commercial and industrial uses. The city formulated a municipal development plan that envisioned water enhanced and water dependent uses designed to revitalize the local economy while retaining the neighborhood's historic character. Specifically, the municipal development plan contemplated a series of office, hotel, residential and recreational facilities.'' Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, supra, 341-42.

''In May, 2005, the plaintiff initiated [a civil] action in the judicial district of New London . . . seeking, inter alia, a permanent injunction prohibiting the defendants from implementing the development plan. In a two count complaint, the plaintiff . . . 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. In count two, alleging 'per se environmental harm and violationof [the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (act)],' the plaintiff alleged that the defendants had violated a variety of state statutes and regulations and repeated its allegations of environmental harm.'' Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 798-99. The defendants thereafter filed motions to dismiss the complaint, alleging that the plaintiff lacked standing, that the case was moot and that the action had been brought in an improper venue under General Statutes § 22a-16. Id., 799-800. The trial court granted the motions, concluding that the plaintiff lacked standing. Id., 800-801. Our Supreme Court reversed that judgment, holding that ''the plaintiff has statutory standing [and] the claim is not moot.'' Id., 801. The court further concluded 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.'' Id., 801-802. The court thus remanded the case to the trial court for further proceedings. Id., 820.

The plaintiff filed an amended complaint on July 17, 2009, in which it sought declaratory and injunctive relief against the defendants. That two count complaint largely resembled the earlier pleading, the gravamen of which is that implementation of the development plan— particularly the storm water management system¹ (system) installed by the corporation—has caused or is reasonably likely to cause pollution and impairment to the environment.² A court trial commenced on October 6, 2009, with the presentation of the plaintiff's case-in-chief. The plaintiff introduced twenty-five exhibits into evidence while offering the testimony of seven fact witnesses and two expert witnesses before resting on October 13, 2009.

At that time, the defendants orally moved for a judgment of dismissal pursuant to Practice Book § 15-8 predicated on the plaintiff's failure to set forth a prima facie case.³ The defendants specifically alleged that ''no evidence that the municipal development plan is reasonably likely to cause unreasonable harm has been presented by the plaintiff.'' After affording the plaintiff the opportunity to be heard, the court granted the motion and rendered a judgment of dismissal. In so doing, the court explained that ''[t]here were no questions asked, no opinions offered about causation. . . . [T]here was no testimony as to proximate cause and no testimony that [the experts'] conclusions were to a reasonable degree of certainty. There is no evidence before this court which would allow the court to reach the conclusion that the conduct, the actions or inactions of the defendants created an unreasonable risk to the environment. There certainly are problems with the environment in this area, but the court cannot reasonably and legally conclude that these problems were proximately caused by the actions of the defendants.'' The plaintiff thereafter filed motions to reconsider, to reargue, to clarify, to open the judgment and to submit additional evidence. After conducting a hearing thereon, the court denied those motions. The plaintiff also filed a motion for articulation, which the court granted. In articulating a ''fuller explanation of its reasoning'' for dismissing the action, the court stated in relevant part that ''in support of [its] claims, the plaintiff called upon two expert witnesses, Dr. Peter Pellegrino and Dr. Robert DeSanto, scientists who testified about their respective studies of the water bodies in question. Each of them offered opinions that the . . . system caused environmental damage to the three water bodies. The methodology used by each witness was explored at length, both on direct examination and on cross-examination. Neither [expert] was asked if his opinions were based on reasonable probability, reasonable certainty or any other standard which resembled a probability. Nor did either witness testify that anything that any defendant did or failed to do was a proximate cause of any actual or potential environmental harm. . . . [N]either expert was asked any questions about causation, nor did either expert's testimony include any statement which could be interpreted as an opinion about proximate cause. The plaintiff therefore failed to put before the court any expert opinion that anything any defendant did was a proximate cause of any environmental damage or of any future threat of environmental damage. . . . It is very clear from the evidence presented that all three of the water bodies in question have historically been contaminated by pollutants which come from a variety of sources other than the [municipal] development [plan] area on the Fort Trumbull peninsula, which is at issue in this lawsuit. The experts took limited samples from the water and/or sediment beneath the three water bodies, and did essentially nothing which would reliably demonstrate that the contaminants which they found therein came from the [municipal development...