Laurel Park, Inc. v. Pac

• Citation: 194 Conn. 677,485 A.2d 1272
• Court: Supreme Court of Connecticut
• Decision Date: 25 December 1984
• Parties: LAUREL PARK, INC. et al. v. Stanley J. PAC, Commissioner of the Department of Environmental Protection, et al.

Page 1272

485 A.2d 1272

194 Conn. 677

LAUREL PARK, INC. et al. v. Stanley J. PAC, Commissioner of the Department of Environmental Protection, et al.

Supreme Court of Connecticut.

Argued Oct. 9, 1984.

Decided Dec. 25, 1984.

Christina G. Dunnell, Asst. Atty. Gen., with whom were Barney Lapp, Asst. Atty. Gen., and, on the brief, Joseph I. Lieberman, Atty. Gen. and Daniel R. Schaefer and Henry S. Cohn, Asst. Attys. Gen. for appellant (named defendant).

Suzanne Y. Langille, New Haven, for appellant (defendant Pollution Extermination Group, Inc.).

Bourke G. Spellacy, Stamford, with whom were Elizabeth C. Barton and, on the brief, James E. Schreiber, Hartford, for appellee (named plaintiff).

N. Warren Hess III, Naugatuck, for appellee (plaintiff borough of Naugatuck).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and DANNEHY, JJ.

SHEA, Justice.

On March 12, 1984, the trial court, Ripley, J., issued a temporary injunction staying an order of the department of environmental protection (DEP) that had closed the Laurel Park landfill located in Naugatuck. The granting of the plaintiff's application for a temporary injunction was appealed to this court pursuant to General Statutes § 52-265a and Practice Book § 3164. ¹ We now find error in the issuance of the temporary injunction and remand for further proceedings.

The plaintiffs in this action are Laurel Park, Inc., the owner and operator of a solid waste landfill facility, and the borough of Naugatuck, in which the Laurel Park landfill is located. The defendants are Stanley J. Pac, in his capacity as commissioner of the DEP, and the Pollution Extermination Group, Inc. (PEG), an intervening citizens group. ² On October 13, 1983, DEP deputy commissioner John Anderson revealed that a small amount of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (TCDD) had been detected in a water sample taken from the Laurel Park landfill. The sample was among twelve taken as part of an ongoing monitoring program of the Naugatuck River area by the DEP. It is undisputed that TCDD in some quantity is a dangerous substance. The deputy commissioner, invoking the power granted the DEP in General Statutes § 22a-7, ³ determined that continued operations at the Laurel Park facility "will result in or are likely to result in imminent and substantial damage to the environment or to public health" and ordered that the landfill immediately cease and desist from accepting and disposing of solid waste and propose a plan of testing and remedial action. ⁴ The Laurel Park landfill complied with this cease and desist order.

The cease and desist order noticed a hearing for October 20, 1983. ⁵ After six days of testimony, the hearing officer, a member of the DEP's adjudicative unit issued proposed findings confirming that TCDD "is present in the groundwater at Laurel Park" and that "[t]he presence of this substance in any concentration at this landfill may reasonably be said to imperil public health and the environment ...." The hearing officer recommended that the cease and desist order remain in effect. He also recommended, however, that the commissioner consider amending the order if further tests proved negative for TCDD and continued operation of the landfill facility would not interfere with the DEP's monitoring program. After oral argument, the defendant commissioner "adopted in its entirety" the proposed decision of the hearing officer. Noting that some additional test results were expected soon, the commissioner concluded that such results would not affect his decision because of the need for extensive testing to provide "conclusive evidence." Thus the proceedings at the administrative level ended with the cease and desist order still in effect for an indeterminate period of time. ⁶

On November 21, 1983, two actions relating to the administrative proceedings were filed in the Superior Court. One was an appeal from the administrative action pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189. ⁷ In the other action, from which this appeal has ensued, Laurel Park and Naugatuck sought to enjoin the DEP's cease and desist order, claiming that issuance of the order deprived them of certain federal rights in violation of 42 U.S.C. § 1983, exceeded the DEP's statutory authority, and breached a contract previously entered into by Laurel Park and the DEP. ⁸ Other equitable relief, damages and attorney's fees were also claimed. The plaintiffs applied in this action for a temporary injunction and the trial court conducted a hearing which occupied seventeen trial days. The defendants objected to the temporary injunction proceeding on jurisdictional grounds, but their motion to dismiss based on the failure of the plaintiffs to exhaust administrative remedies was denied by the court on the first day of the hearing, December 2, 1983. ⁹ As the hearing progressed, the plaintiffs presented evidence, including many test results unavailable to the DEP when its order was finalized and thus not a part of the administrative record, that cast doubt upon the accuracy of the evidentiary basis for the DEP's order and the propriety of its continuance. On March 12, 1984, a decision was issued granting the plaintiffs' request for a temporary injunction to stay the effect of the DEP's cease and desist order, provided that the operation of the landfill would not interfere with ongoing testing at the site. The trial court retained jurisdiction to monitor developments in the case. ¹⁰ The effect of the temporary injunction was not stayed pending appeal. ¹¹

I

The motion to dismiss that the trial court denied raised as a jurisdictional issue the alleged failure of the plaintiffs to exhaust their administrative remedy by pursuing the pending appeal from the commissioner's order to close the landfill. "When an administrative remedy is provided by law, relief must be sought by exhausting this remedy before resort to the courts." McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704 (1953). While recognizing this general rule, the trial court denied the motion to dismiss, concluding that the circumstances brought the case within an exception to the exhaustion doctrine "where: the constitutional propriety of an agency ruling is raised...." Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 94, 448 A.2d 210 (1982); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980). The court determined that, because the commissioner's order effectively terminated the plaintiffs' use of the property for all practical purposes while the appeal was pending, the administrative remedy was ineffective to protect their constitutional rights. Before us the plaintiffs make essentially the same contentions in support of the judgment as well as the denial of the defendant's motion to dismiss.

"We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963). The underlying claim of the plaintiffs is that the order to close the landfill was issued without substantial support in the evidence before the commissioner. ¹² A claim that the evidence does not support the findings or conclusions of an administrative agency is frequently the subject of an administrative appeal. See General Statutes § 4-183(g)(5). ¹³ Similarly, the severe consequences which the plaintiffs would have suffered because of termination of the landfill operation pursuant to the commissioner's order are not substantially distinguishable from those which often attend a license suspension or similar interference with the operation of a business resulting from a decision of an administrative agency. The UAPA contains provisions designed to protect the legitimate interests of persons appealing from agency decisions claimed to be arbitrary or unreasonable. General Statutes § 4-183(c), ¹⁴ though providing that the filing of an appeal does not automatically stay enforcement of an agency decision, allows the reviewing court to order a stay upon appropriate terms. Despite the plaintiffs' protestations to the contrary, it is difficult to comprehend why a court would have been less inclined to order a stay of the commissioner's order upon a proper application in the pending administrative appeal than to issue a temporary injunction achieving the same result in a separate action. The same evidence presented to the court in this action would have warranted the same relief in the pending appeal if the plaintiffs had followed the procedure prescribed by the UAPA.

The plaintiffs have attempted to distinguish this case from other administrative appeals which allege an inadequate basis for an agency's finding upon the ground that subsequent developments after issuance of the commissioner's order, particularly the many test results failing to confirm the presence of TCDD at the landfill site, could not have been utilized in an administrative appeal, which is ordinarily limited to review of the record before the agency. We have previously held that a trial court has a responsibility to hear new evidence to ascertain whether the administrative action was legally warranted, especially where the record before the agency is uninformative and inadequate for adjudication of the issues raised. Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 120, 425 A.2d 576 (1979); Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 56-57, 282 A.2d 890 (1971). Express provision, moreover, is made in § 4-183(e) of the UAPA for an application in a pending administrative appeal "for...