Jacques v. Comm'r of Energy & Envtl. Prot.

• Decision Date: 30 March 2021
• Docket Number: AC 42609
• Citation: 203 Conn.App. 419,249 A.3d 40
• Court: Connecticut Court of Appeals
• Parties: Kathleen JACQUES v. COMMISSIONER OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

203 Conn.App. 419

249 A.3d 40

Kathleen JACQUES

v.COMMISSIONER OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

AC 42609

Appellate Court of Connecticut.

Argued October 13, 2020

Officially released March 30, 2021

Richard S. Cody, with whom, on the brief, was Michael P. Carey, New London, for the appellant (plaintiff).

Lori D. DiBella, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellees (defendants).

Lavine, Suarez and Devlin, Js.^*

SUAREZ, J.

The plaintiff, Kathleen Jacques, brought the action underlying this appeal against the defendants, Robert Klee, the Commissioner of Energy and Environmental Protection (commissioner), and Benjamin Barnes, Secretary of the Office of Policy and Management (secretary). The plaintiff sought, inter alia, a permanent injunction prohibiting the defendants from taking further action with respect to a plan to redevelop Seaside State Park in Waterford and an order precluding the defendants from "further denying ... her statutory rights" to intervene in public hearings related to the redevelopment project. The plaintiff appeals from the judgment of the trial court granting the defendants’ motion to dismiss on the ground of sovereign immunity and concluding that she failed to demonstrate that an exception to sovereign immunity applied. On appeal, the plaintiff claims that the court (1) erred in determining that she failed to allege facts sufficient to establish her statutory standing under General Statutes § 22a-16, (2) utilized an improper standard in construing the complaint's allegations under the sovereign immunity exceptions for state actions in violation of the plaintiff's constitutional rights and for state actions in excess of its authority, (3) erred when it concluded that the allegations of the complaint did not come within the exception to sovereign immunity for state actions alleged in violation of constitutional rights, (4) erred when it held that the allegations of the complaint did not come within the exception to sovereign immunity for a substantial allegation of wrongful conduct to promote an illegal purpose in excess of a state officer's statutory authority, and (5) erred when it ruled that the scoping process/ review of the environmental impact evaluation was not a "proceeding" for purposes of intervention under General Statutes § 22a-19.¹ We affirm the judgment of the trial court.

The following procedural history is relevant to this appeal. The plaintiff commenced the underlying action on July 12, 2018. The two count complaint sought a permanent injunction prohibiting the Department of Energy and Environmental Protection (department) from further implementing its master plan to redevelop Seaside State Park, a thirty-two acre, state owned property in Waterford, and to enjoin the defendants "from further denying the plaintiff her statutory rights" under § 22a-19. Specifically, she challenged "the record of decision, opinion, findings of fact, and determination of environmental impact concerning the Seaside State Park Master Plan, prepared by [the department] and submitted to the ... Office of Policy and Management on January 9, 2018, which [the Office of Policy and Management] subsequently reviewed and favorably determined on or about March 2, 2018 pursuant to statutory requirement ...."

The plaintiff alleged in her complaint that Seaside State Park is located on Long Island Sound and contains a number of buildings, including two former residences located approximately 300 feet and 550 feet from her home, respectively. She further alleged that the department intended to implement a "destination park concept" as its preferred alternative, which would involve the "restoration and reuse of existing historic buildings onsite for lodging and enhancement of the waterfront for ecological and recreational purposes ...." The plaintiff included in the complaint passages from the master plan that allegedly stated that "the buildings designated for lodging ... would support up to approximately 63 rooms with associated services such as dining areas, conference space, a pool, fitness center and parking. ... [I]f developers deem that 63 rooms are not sufficient to make the project economically viable, then [the department] will entertain proposals for up to 100 rooms of lodging."

The plaintiff alleged that the department looked at the potential environmental impacts of the proposed redevelopment and prepared an environmental impact evaluation with its findings.² At its discretion, the department scheduled a public hearing on the environmental impact evaluation to be held on July 31, 2017.³ The plaintiff further alleged that on July 25, 2017, she filed with the department a verified complaint seeking to intervene in this public hearing pursuant to § 22a-19. In her complaint, she stated that by intervening, she expected to have the opportunity "to provide for evidentiary purposes the live testimony of one or more expert witnesses on her behalf in opposition to the findings, recommendations, conclusions and opinions in the [environmental impact evaluation] which came before the public hearing, and the right, as a party, to cross-examine [the department's] witnesses and to provide rebuttal expert testimony."

The plaintiff next alleged that on July 31, 2017, prior to the scheduled public hearing, the department e-mailed her a letter from the agency legal director denying that there was a "proceeding" in which she could intervene, and indicating that, "[l]ike all members of the public, [she] is afforded the opportunity to make comments on the [environmental impact evaluation]." The plaintiff stated in her complaint that, because she was prevented from participating as a party intervenor in the July 31, 2017 hearing, she was "unable to cross-examine [the department's] witnesses and/or to present her own experts."

The plaintiff further alleged that on January 9, 2018, pursuant to General Statutes § 22a-1e,⁴ the department submitted the environmental impact evaluation and a record of its decision on the proposed action to the Office of Policy and Management for approval. She further alleged that on March 2, 2018, the secretary wrote a letter to the commissioner in which he concluded that the environmental impact evaluation satisfied the requirements of the Connecticut Environmental Protection Act of 1971 (act), General Statutes § 22a-14 et seq.

The plaintiff's complaint alleged potential environmental impacts cited by the department in its environmental impact evaluation and alleged that, "[a]ccording to the [environmental impact evaluation], some of the ... impacts [would] be irreversible." She alleged that "[n]oise resulting from lodging and related increased uses of the Seaside property ... would be easily audible from [her] property, and from within her household." Therefore, she alleged, the department's proposed action would "specially and injuriously affect the special personal or legal interests of [the plaintiff]." In count one, the plaintiff alleged that the commissioner violated her rights as an intervenor under § 22a-19 when the department denied her petition for intervention and subsequently forwarded the environmental impact evaluation and record of decision to the Office of Policy and Management. In count two, the plaintiff alleged that the secretary violated her rights under § 22a-19 when he issued a finding that the environmental impact evaluation satisfied the requirements of the act, despite the department's alleged violation of her rights as a would be intervenor.

On September 6, 2018, the defendants moved to dismiss the plaintiff's cause of action in its entirety, pursuant to Practice Book § 10-30, on the ground that the court lacked subject matter jurisdiction on the basis of sovereign immunity. The plaintiff filed a memorandum of law in opposition to the motion to dismiss in which she relied on each of the following three exceptions to the doctrine of sovereign immunity. First, she argued that the legislature waived the state's sovereign immunity for her to challenge the department's environmental impact evaluation process when it enacted the act. Second, she argued that the allegations of the complaint demonstrated that she "had a colorable claim to a constitutional due process property interest in intervention." Third, she argued that the department acted in excess of its authority and in derogation of its duties under the act, specifically § 22a-19, when it denied her verified petition for intervention. Additionally, she argued that the environmental impact evaluation and scoping projects were "proceedings" for the purposes of § 22a-19, and, therefore, the department's decision to reject her petition "was legally incorrect and beyond [its] authority to make."

The defendants filed a reply in which they argued that the plaintiff failed to allege facts in her complaint sufficient to satisfy any of the three exceptions to sovereign immunity. They also contended that the public hearing on the environmental impact evaluation was not a "proceeding" for the purposes of intervention.

The court held a hearing on the motion to dismiss on October 22, 2018, during which the court ordered supplemental briefing. The parties submitted supplemental briefs on October 26, 2018.

The court granted the defendants’ motion to dismiss and rendered judgment dismissing the action on December 17, 2018. The court issued a memorandum of decision on the same date. In its memorandum of decision, the court concluded, pursuant to the doctrine of sovereign immunity, that the plaintiff lacked standing. First, the court concluded that the allegations of "the plaintiff's complaint [fell] short of articulating a colorable claim of unreasonable pollution, impairment or destruction of the environment" as required by General Statutes § 22a-16 and, thus, "failed to establish statutory standing ...." (Internal quotation marks omitted.) Second, the court...