Opinion
No. CV 03-0520712
January 30, 2004
MEMORANDUM OF DECISION
Facts
The plaintiffs, Jennifer and Todd Michalek (the Michaleks), along with environmental intervener, Francesca Heap (Heap), appeal a decision of the defendant, Town of Plainville Planning and Zoning Commission (the commission), granting defendants JNS Development, LLC (JNS) and Costos Jones' site plan application for the development of 38.6 acres in Plainville.
In December 2002, JNS submitted the application to the commission to develop the site into 116 residential homes in an R-12 zone. In March of 2003, the commission approved the site plan under its regulations. On June 3, 2003, the Michaleks, under General Statutes § 8-91, and Heap, under General Statutes § 22a-19, appealed to this court for review of the commission's decision. The Michaleks have not shown aggrievement and have since withdrawn their appeal, leaving Heap as the sole plaintiff.
The issue is whether the court has subject matter jurisdiction to hear an administrative appeal when the only plaintiff left in the case is a § 22a-19 environmental intervener.
Discussion
Connecticut General Statutes § 22a-19 allows a non party to intervene during judicial review of an administrative appeal, but the scope of the intervention is limited to the jurisdictional authority of the administrative agency which rendered the decision and the intervener can only raise environmental issues. Nizzardo v. State Traffic Commission, 259 Conn. 131, 156, 788 A.2d 1158 (2002). To succeed the intervener must show the involvement of a protectable natural resource and unreasonable pollution, impairment, or destruction of that resource. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 441 A.2d 68 (1981). If the intervener cannot meet this burden, then the subject matter jurisdiction of the court is implicated because the intervener is not classically aggrieved. New England Rehabilitation Hospital, Inc., v. Commission on Hospitals and Health Care, 226 Conn. 105, 120-21, 627 A.2d 1257 (1993).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . The objection of want of [subject matter] jurisdiction may be made at any time . . . and the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed." (Internal quotations omitted.) Dowling v. Slotnik, 244 Conn. 781, 787-89, 712 A.2d 396, cert. denied, 525 U.S. 1017 (1998).
During oral argument on November 17, 2003, Heap's counsel informed the court that the original zoning plaintiffs, Jennifer and Todd Michalek, had withdrawn their appeal. At this point the court questioned its jurisdiction and Heap referred to the Connecticut Supreme Court's decision in Waterbury v. Washington, 260 Conn. 506, n. 32, 800 A.2d 1102 (2002), arguing that an environmental intervener has standing when the environmental harm is unreasonable.
Following the hearing JNS submitted a supplemental brief on the issue of jurisdiction. They argued that Waterbury does not apply to § 22a-19. They further argued that Nizzardo v. State Traffic Commission, supra, 259 Conn. 131, is the current law regarding standing and § 22a-19 interveners. Finally they argue that § 22a-19 is limited to issues the administrative body has jurisdiction to hear, and that questions of procedure are outside of the scope of the commission.
Following argument on this matter the Connecticut Supreme Court decided Fort Trumbull Conservancy v. Planning Zoning Commission of New London, 266 Conn. 338 (2003). The plaintiffs in Fort Trumbull, like Heap, were environmental interveners under § 22a-19, and were also the sole plaintiffs in the administrative appeal. In Fort Trumbull, the Superior Court had concluded there was no subject matter jurisdiction because § 22a-19 provided no independent standing, and dismissed the case. Upon review, the Connecticut Supreme Court upheld the dismissal holding that § 22a-19 must be strictly construed and the legislature did not intend to give § 22a-19 interveners a right to appeal from administrative matters not otherwise allowed. Id., 361. The Supreme Court went further and held that their decision in Waterbury is limited to § 22a-16 appeals, concluding that Waterbury is inapposite to issues involving § 22a-19. Id., 361-2.
Conclusion
Under the recent decision in Fort Trumbull, the Superior Court does not have subject matter jurisdiction to hear appeals brought by § 22a-19 interveners unless it is joined with on appeal otherwise permitted by statute. Heap's argument that the court has jurisdiction based on Waterbury is misplaced, because, subsequent to the argument, the Connecticut Supreme Court held Waterbury to be inapposite to § 22a-19 appeals. Fort Trumbull Conservancy v. Planning Zoning Commission of New London, supra, 266 Conn. 363. Without a zoning appellant the plaintiff has no standing in this appeal, and therefore subject matter jurisdiction is implicated. When it becomes apparent to the court that it lacks subject matter jurisdiction, the appeal must be dismissed. See Dowling v. Slotnik, supra. 244 Conn. 787-89. Pursuant to Practice Book § 10-33, which allows the court to raise the issue of subject matter jurisdiction sua sponte, the appeal is dismissed.
BY THE COURT
Kevin E. Booth, J.