Opinion
No. CV 03 0567864
July 12, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS DECLARATORY JUDGMENT ACTION AS MOOT
Plaintiffs John Drabik and Ronald Rando are residents and property owners in the Town of East Lyme, Connecticut. In their amended complaint, the plaintiffs allege that the voters of the town by referendum authorized the expenditure of $3,800,000 to finance the construction of a boardwalk and fishing pier known as the Niantic Bay Overlook Project.
The plaintiffs further allege that the authorization was accompanied by a resolution for the project which included the following specific improvements: 1) a wooden structure with wood decking approximately 5300 feet in length running along Niantic Bay between Hold in the Wall Bridge and the Niantic Bay Bridge; and 2) a fishing pier projecting into Niantic Bay approximately 150 feet at the easterly end of the project.
The plaintiffs also allege that after the bids indicated that the project would be nearly $1 million higher than the amount approved by the voters in the referendum, the town, without further authorization from the voters through a regular or special town meeting, changed the planned construction, redesigned the project, and solicited new bids for the new work. The new plan provided for a reduction of the boardwalk by 2100 feet; a reduction of the width of the boardwalk; a deletion of the fishing pier; and a change of the decking from wood to plastic and wood composite.
The plaintiffs seek by way of relief a declaratory judgment declaring that the town's construction of the Niantic Overlook Project, as modified, was illegal. The purpose of the requested declaratory judgment is so that the plaintiffs may "vindicate the rights of the voters and to prevent usurpation of their rights in the future."
Defendant Town of East Lyme has filed a motion to dismiss based essentially on mootness, inasmuch as the parties acknowledge for this motion that the construction project has been completed. The defendant also points out that earlier in this case the plaintiffs requested this court issue an injunction to prohibit the town from proceeding with the project or deviating from what they understood to be the project as approved in the referendum. The request for the injunction was denied.
In its motion to dismiss the defendant notes that the plaintiffs do not allege in their amended complaint that the cost of the project exceeded the appropriated monies nor that they have been specifically harmed. The court shall now address the defendant's claim that since the project is completed there is no relief that the court can provide in this case, and that therefore mootness deprives the court of jurisdiction.
"Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction." (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 19, 856 A.2d 973 (2004).
In Sweeney v. Sweeney, 271 Conn. 193 (2004), the Supreme Court set out the conditions under which a case faced with a claim of mootness remains viable for judicial review.
This does not end our analysis, however, because an otherwise moot question way qualify for review under the capable of repetition, yet evading review exception [to the mootness doctrine]. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot. (Internal quotation marks omitted.)
Sweeney v. Sweeney, supra, 271 Conn. 201-02.
The plaintiffs argue that the span of the construction of the Niantic Bay Overlook project, approved by voters in 1999, is of such limited duration that challenges to its validity became moot before trial and appellate review could be completed. The Appellate Court has held that even a "trial court's dismissal of [an] injunctive action, is not inherently of such a limited duration that there is a strong likelihood that the majority of cases raising a question about its validity will become moot before appellate litigation can be concluded." Barszk v. Solnit, 46 Conn.App. 112, 115 (1997). Furthermore, the Appellate Court has also held that "a decision to rezone property is not by its very nature on a limited duration, and it is unlikely that the substantial majority of cases raising the issue of the validity of a change of zoning would become moot before appellate litigation could be concluded." Karp v. New Britain, 57 Conn.App. 312, 316, n. 8 (2000).
The plaintiffs also argue that the second prong of the exception to the mootness rule is satisfied, because the voter approval of appropriations will again be required for future construction projects, and voters must know whether they will be able to trust that projects will be built to specification. The Supreme Court held that the repetition prong of the exception "entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation . . . In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future." Loisel v. Rowe, 233 Conn. 370, 384. As further stated by the Court in Loisel:
Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.
Id. 384.
The question presented in the plaintiffs' amended complaint is whether the defendants failed to conform to specifications approved by voters in constructing the Niantic Bay Overlook project. The first part of the three-part test cannot be satisfied by the plaintiffs inasmuch as they can not show that ". . . the challenged action, or the effect of the challenged action, by its very nature [is] of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before [judicial review] can be concluded." Sweeney, id. 202. Furthermore, any future project determined by referendum may be subject to judicial review if challenged by particular taxpayers or voters.
Because the plaintiffs have failed to meet the requirements of the exceptions to the mootness rule, the court finds that the issue is moot.
Accordingly, the motion to dismiss should be and hereby is granted.
Clarance J. Jones