Hyllen-Davey v. Plan & Zoning Commission

• Decision Date: 09 May 2000
• Docket Number: (AC 18855)
• Citation: 57 Conn. App. 589,749 A.2d 682
• Court: Connecticut Court of Appeals
• Parties: MELODY HYLLEN-DAVEY ET AL. v. PLAN AND ZONING COMMISSION OF THE TOWN OF GLASTONBURY ET AL.

57 Conn. App. 589

749 A.2d 682

MELODY HYLLEN-DAVEY ET AL. v. PLAN AND ZONING COMMISSION OF THE TOWN OF GLASTONBURY ET AL.

(AC 18855)

Appellate Court of Connecticut.

Argued December 13, 1999.

Officially released May 9, 2000.

Lavery, Mihalakos and Stoughton, JS.¹

Derek V. Oatis, for the appellants (plaintiffs).

David F. Sherwood, for the appellee (defendant Zella D. Ferrando).

Opinion

LAVERY, J.

The plaintiffs² appeal from the trial court's judgment dismissing on motions by the defendants³ an administrative appeal from the decision by the defendant plan and zoning commission of the town of Glastonbury (commission) that approved a subdivision application. The plaintiffs contend that the court improperly (1) concluded that General Statutes § 22a-19⁴ does not provide an independent right of appeal to a nonparty who did not intervene during the underlying administrative hearing where no parties to the hearing appealed and (2) denied the plaintiffs' motion for a continuance. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant Zella D. Ferrando is the owner of approximately ninety-seven acres of land in Glastonbury. In March, 1998, the defendant Rejean Jacques, doing business as Rejean Realty, Inc., applied to the commission for a special permit to subdivide land for development. In April, 1998, the commission approved the application.

In May, 1998, the plaintiffs, who had not intervened in the action before the commission, appealed from the commission's decision to the Superior Court. The defendants filed motions to dismiss the appeal, and a hearing date was set. The plaintiffs opposed the motions and filed a motion for a continuance to give them time to obtain a written record from the commission. The court denied the motion for a continuance.

On July 10, 1998, after conducting a hearing, the court granted the motions to dismiss on the ground that the plaintiffs lacked standing to initiate an appeal because they had not intervened in the proceeding before the commission as required by § 22a-19. On September 9, 1998, we granted the plaintiffs' petition for certification to appeal to this court. On September 25, 1998, the plaintiffs filed this appeal.

I

The primary issue before us is whether the Environmental Protection Act of 1971 (EPA), General Statutes § 22a-14 et seq., gives standing to a nonparty in an administrative agency proceeding to initiate an appeal from that agency's decision when no party to the agency proceeding has done so. We answer this question in the negative and affirm the judgment of the trial court. "`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.' Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs'] claim.' ... Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998). `We first note that, because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.' ... Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999)." Taft v. Wheelabrator Putnam, Inc., 55 Conn. App. 359, 362, 742 A.2d 366 (1999), cert. granted on other grounds, 252 Conn. 918, 919, 744 A.2d 439, 440 (2000).

Before the enactment of the EPA, citizens seeking to protect the environment had to show specific, personal aggrievement to attain standing to bring a legal action. See Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396 (1969). Citizens concerned about the environment were seen as meddlers in public affairs. H. Johnson, "The Environmental Protection Act of 1971," 46 Conn. B.J. 422, 423 (1972). The prevailing belief was that the public's interest would be protected by public authorities and that allowing citizens to file suit would cause the courts to be "overrun by self-appointed protectors of the public interest." Hiland v. Ives, 28 Conn. Sup. 243, 247, 257 A.2d 822 (1966).

Although such concerns repeatedly were expressed by legislators discussing the bill that would become the EPA; see, e.g., 14 H.R. Proc., Pt. 2, 1971 Sess., p. 748, remarks of Representative Robert D. King ("this Bill is an open invitation to every ecology kook in the state to zero in on his pet project regardless of its effect on the state as a whole"); the prevailing belief was that our state's natural assets were protected insufficiently under then current law. "[T]his bill ... expands the right of a person to have access to the courts when property which we might say belongs to all of the public is jeopardized by the alleged polluting activity. Presently a person, unless he can show a personal direct ownership or other interests in the land which he claims [is] being affected by the alleged activity, does not have legal standing in the court of law. Consequently, some of the most beautiful aspects of our environment, some of those most vital not only to our survival, but to that of future generations are such that they do not lend themselves to a proprietary or a personal interest and this bill makes the guaranteeing and the preservation and the protection of these rights available to the general public which they are not presently under our law." Id., p. 739, remarks of Representative John F. Papandrea; see generally E. Gellhorn, "Public Participation in Administrative Proceedings," 81 Yale L.J. 359 (1972). The bill was passed and became the EPA.

To further its goal of protecting the environment, the EPA waives the traditional aggrievement requirement in two ways. First, General Statutes § 22a-16 authorizes any citizen or organization, without having to first establish aggrievement, to initiate a declaratory or injunctive action to protect the public trust. Second, § 22a-19 authorizes any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceeding. We view these two provisions as operating hand in hand to grant a full range of protection to our state's environmental resources. State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997) (statutes should be read together when involving similar subject matter). Section 22a-16 allows the initiation of declaratory or injunctive actions to challenge an environmental harm, and § 22a-19 allows intervention in already existing administrative proceedings. In essence, the EPA allows Connecticut citizens and organizations to act as private attorneys general, protecting the public trust in a manner that the state, with its limited resources, could not achieve. Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 343, 348 A.2d 596 (1974); see generally R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 32.6, pp. 122-32.

The plaintiff contends that this court need not look beyond Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989), to resolve the issue before us. In Red Hill Coalition, Inc., the conservation commission of the town of Glastonbury argued that Julianne Steffens, president of the Red Hill coalition, lacked standing to appeal under § 22a-19 because Steffens had not intervened in the underlying administrative proceeding. Id., 715-16. The Supreme Court disagreed and concluded that "by joining the coalition's appeal to the Superior Court ... [Steffens was] not statutorily required to file a notice of intervention before the commission." Id., 716.⁵

We do not agree that the holding in Red Hill Coalition, Inc., is conclusive under the facts of this case. Red Hill Coalition, Inc., held that a person who had not intervened in the administrative proceedings could join a valid appeal initiated by other parties. The plaintiffs here have a more tenuous connection to the proceeding than did Steffens in Red Hill Coalition, Inc. They seek their own independent appeal to the Superior Court from a decision rendered without their participation at the administrative agency level and where no party to the administrative hearing brought an appeal. In essence, Red Hill Coalition, Inc., does not confirm whether entities or individuals, such as the plaintiffs, hold an independent right under § 22a-19 to appeal from an agency's decision. Accordingly, even with the benefit of the ruling in Red Hill Coalition, Inc., we must independently review the applicability of § 22a-19 to the facts of this case.

"When interpreting a statute, courts should accord a statutory enactment its plain meaning.... Moreover, the meaning of statutory language must be determined from a reading of the statute as a whole.... We may not, by construction, read a provision into legislation that is not clearly stated therein." (Citations omitted; internal quotation marks omitted.) Reliance Ins. Co. v. Reider, 54 Conn. App. 77, 83, 730 A.2d 1229, cert. denied, 250 Conn. 928, 738 A.2d 659 (1999). As we will discuss, the plain meaning of § 22a-19 does not permit this appeal.

In short, § 22a-19 allows any individual or entity to "intervene as a party" in certain proceedings or judicial review thereof to challenge harm to the environmental public trust. The plain meaning of the word "intervene" highlights the joining of an existing action, even when viewing the term as it was defined at the time our legislature enacted the EPA. "Intervene" is defined as "[t]o come between. To become a party to an action by way of intervention."...