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1 Taft v. Wheelabrator Putnam, Inc., Not Reported in A.2d (1998) 1998 WL Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Opinion SFERRAZZA, J. Superior Court of Connecticut. Timothy P. TAFT et al. v. WHEELABRATOR PUTNAM et al. No. CV S.Jan. 22, MEMORANDUM OF DECISION *1 The defendants, Wheelabrator Putnam, Inc., (Wheelabrator), and the Putnam Zoning Commission (Commission) move to dismiss this action for lack of subject matter jurisdiction. The plaintiffs are property owners in Putnam whose land is purportedly close to the site of property for which the Commission granted Wheelabrator s application for a special use permit to construct and operate an ash landfill. The plaintiffs complaint alleges that Wheelabrator s application, the minutes of the hearing, and the published notice of decision by the Commission concerning this special use permit refer to the property as Lot 7 on Assessor s Map 20T when that lot is not part of the landfill property and is owned by strangers to the application and this suit. A motion to dismiss admits all well-pleaded facts, and the court is limited to consideration of record. Young v. Chase, 18 Conn.App. 85, 90, 557 A.2d 134 (1989). The complaint contains the following allegations. On September 18, 1996, the Commission approved the application and on October 29, 1996, published notice of its decision. The plaintiffs never appealed that decision to the superior court but, instead, began this action seeking a declaratory judgment and injunctive relief. The misdescription of the subject property is the basis for the plaintiffs claims. The defendants move to dismiss on the ground that 6(c) of Special Act 97-6 validated the Commission s decision, defective notice notwithstanding. The plaintiffs counter that the effect of the validating act goes to the merits of the action rather than the court s jurisdiction to hear the case. The court agrees with the defendants. Generally, where a statutory right of appeal from the doings of an administrative agency exists, an aggrieved party must utilize that appeal rather than commence an independent action to contest the agency decision. Payne v. Fairfield Hills Hosp., 215 Conn. 675, 679, 578 A.2d 1025 (1990); LaCroix v. Board of Education, 199 Conn. 70, 78, 505 A.2d 1233 (1986). There are four recognized exceptions to this rule, viz. (1) where the constitutionality of a statute or regulation is challenged, Payne v. Fairfield Hills Hosp., supra, 680; (2) where recourse to the agency would be futile or inadequate, Cannata v. D.E.P., 215 Conn. 616, 628, 577 A.2d 1017 (1990); (3) where an administrative agency lacks subject matter jurisdiction to act because of defective notice, Young v. Chase, supra, 91; and (4) where the agency s statutory power has been exceeded. Id. Under G.S. 8-8(b), the plaintiffs could have appealed to the superior court from the Commission s issuance of the special use permit but failed to do so. Consequently, in order to maintain this independent action challenging that decision, the plaintiffs must fall within one of the recognized exceptions. The only exception claimed by the plaintiffs pertains to defective notice. Assuming the plaintiffs allegations to be true, the Commission s decision would have been void permitting the plaintiffs to bring this suit. Upjohn Co. v. Z.B.A., 224 Conn. 96, 101, 616 A.2d 793 (1992); Koepke v. Z.B.A., 223 Conn. 171, 175, 610 A.2d 1301 (1992); Koskoff v. Planning and Zoning Commission, 27 Conn.App. 443, 446, 607 A.2d 1146 (1992). *2 Thus, the question before the court is whether the validating act which was passed subsequently cures the defective notice, takes the plaintiffs out of the exception noted above, and deprives the court of subject matter jurisdiction. The court concludes that it does. The facts of the case of Young v. Chase, supra, are tantalizingly close to those in the present case with one critical difference. In that case, an applicant obtained a special use permit from the local zoning authority for the construction and operation of a television transmission tower. The plaintiffs failed to appeal from the granting of that permit but later filed an independent action requesting declaratory and injunctive relief. The basis for the action was that the application and notice of decision failed to mention a parcel of land upon which the tower would stand. After that suit was filed a validating act became effective. The defendants moved to dismiss the action based on the passage of the validating act. The trial 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

2 Taft v. Wheelabrator Putnam, Inc., Not Reported in A.2d (1998) court granted the motion to dismiss. The Appellate Court reversed the trial court and held that language in the act itself stated that the act was inapplicable to matters which were pending in court before the effective date of the act. Id., 98, 557 A.2d 134. Because the plaintiffs in that case had begun the action before the validating act took effect, the defective notice remained uncured, and the case could proceed. In the present case, the plaintiff commenced this action on September 10, 1997, nearly five months after the effective date of S.A which was April 18, Once S.A. End of Document 97-6 took effect, the irregularities regarding notice ceased to invalidate the Commission s decision. Because that decision was no longer void when the plaintiffs began this action, no exception to the rule barring such suits obtains. The failure of the plaintiffs to take an appeal as provided by 8-8(b) or to commence an independent action before the effective date of S.A deprives this court of subject matter jurisdiction to adjudicate the merits of the plaintiffs claims. The motions to dismiss are granted Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 2

3 Taft v. Wheelabrator Putnam, Inc., Not Reported in A.2d (2000) 2000 WL Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Opinion Superior Court of Connecticut. Timothy P. TAFT et al., v. WHEELABRATOR PUTNAM, INC. et al. SFERRAZZA. No. CV S.Aug. 29, MEMORANDUM OF DECISION *1 On April 13, 2000, the Connecticut Supreme Court remanded this matter to this court to conduct an evidentiary hearing and to make factual and legal findings on the issue of aggrievement. On July 11, 2000, the court held that hearing. A review of the procedural history is appropriate. On September 10, 1997, the plaintiffs, Timothy Taft, Robert G. Viens, Robert J. Viens, and Marguerite G. Viens, commenced this action against the defendants, Wheelabrator Putnam, Inc., (Wheelabrator), and the Putnam Zoning Commission (commission). The action seeks a declaratory judgment, injunctive relief, and damages. The essence of the suit is a collateral attack upon the issuance of a special permit by the commission enabling Wheelabrator to construct and operate an ash residue landfill on property partly owned by and partly leased to Wheelabrator and located in Putnam. The plaintiffs contend that the permit was invalid because of certain procedural irregularities concerning notice of the decision of the commission. The plaintiffs never directly appealed to the Superior Court from the commission s decision. On October 30, 1997, Wheelabrator moved to dismiss this action arguing that Special Act 97-6 validated any defects as to the notification procedure employed by the commission. The commission joined in this motion on November 26, On January 20, 1998, this court granted these motions to dismiss holding that the validating act cleansed any procedural defects as to notice and that the failure by the plaintiffs to utilize an administrative appeal to the Superior Court under General Statutes 8-8(b) deprived this court of subject matter jurisdiction to consider the collateral attack, Taft v. Wheelabrator Putnam, Inc., Superior Court, Windham J.D., d.n. CV (January 20, 1998). The plaintiffs appealed from this dismissal, and, on October 19, 1999, the Appellate Court reversed that decision ruling that the validating act failed to cure the type of defective notice present in this case, Taft v. Wheelabrator Putnam, Inc., 55 Conn.App. 359, 742 A.2d 366 (1999). The defendants sought and received certification to appeal the Appellate Court decision to our Supreme Court, Taft v. Wheelabrator Putnam, Inc., 252 Conn. 918, 744 A.2d 439 (2000) and 252 Conn. 919, 744 A.2d 440 (2000) On February 22, 2000, Wheelabrator filed with the Supreme Court a motion to dismiss the plaintiffs appeal to the Appellate Court and to vacate the decision of the Appellate Court claiming that the plaintiffs lacked aggrievement when the Appellate Court rendered its decision. On April 13, 2000, the Supreme Court remanded the matter to this court to resolve the factual and legal issues regarding aggrievement. As to this issue, the court makes the following determinations. Paragraph 8 of the complaint sets forth the plaintiffs claim of aggrievement. It states that the plaintiffs will be directly and peculiarly affected by the construction and operation of an ash landfill because their properties lie in close proximity to the site and abut truck access routes to the site and the granting of the special use permit would adversely affect the value of their properties, their specific interests and the use and enjoyment of their properties. At the evidentiary hearing, the plaintiffs agreed that the issue of the construction of the landfill was moot because such construction was completed by May Consequently, the focus of the aggrievement claims is as to the operation phase only. With regard to that issue, the court finds that none of the plaintiffs own property which abuts the landfill nor are their parcels within one mile of its borders. Taft s land is located at 50 Mantup Road and the Viens properties are located at 111 to 113 Mantup Road in Putnam. *2 Robert G. Viens also argues that his sole ownership of a corporation, Putnam River Road, LLC, entitles him to have the court treat his aggrievement claim as if he held title to property located at 341 River Road, Putnam, in his own name. That parcel buts the landfill site. The court rejects this argument. The evidence disclosed that 341 River Road is presently owned by Putnam Road, LLC, which entity acquired that property, on March 21, 2000, 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

4 Taft v. Wheelabrator Putnam, Inc., Not Reported in A.2d (2000) from another corporation, Mantup Prop. Mgt. Inc. (Mantup), a date after the Appellate Court decision of October 19, No evidence was adduced as to when Mantup acquired the property nor as to its shareholders. The purchase at a later time by a corporation solely owned by Robert G. Viens is immaterial as to whether he was aggrieved earlier. Initially, the usual access to the landfill by the trucks carrying residue would have been over Mantup Road, and traveling past the plaintiffs properties. However, the plaintiffs and Wheelabrator entered into an agreement whereby Wheelabrator constructed a separate, private access road to the landfill and bound itself to use that access exclusively, except for certain emergencies. The plaintiffs agreed to refrain from appealing from administrative decisions of the Connecticut department of environmental protection and the municipal wetlands and subdivision authorities which had previously granted permission for the construction and operation of the landfill. This private access road eliminates the use by residue truck traffic along Mantup Road. On March 19, 1998, the D.E.P. issued a permit to construct the ash residue landfill, and, on May 6, 1999, the D.E.P. authorized its operation. On June 1, 1999, the construction permit was amended to require Wheelabrator to use the private road as access to the landfill fulfilling the terms of the parties agreement. After the reversal of this court s decision by the Appellate Court, Wheelabrator applied for and was granted, on December 14, 1999, a second special use permit by the commission to operate the landfill. The plaintiffs never appealed from the issuance of that second permit. The landfill has operated since May 12, 1999, and the only truck access in use is by way of the specially constructed bridge and road. Wheelabrator has gated all other routes to the site. The plaintiffs presented no witnesses at the aggrievement hearing relying instead on documentary evidence. No evidence was offered that the operation of this ash residue landfill would be perceptible to the senses from the plaintiffs properties. The plaintiffs submitted no evidence as to any negative financial impact of the landfill operation on the value of their respective properties. The plaintiffs conceded at the hearing that the risk of reduction in property value was not a valid source of aggrievement in this case. The ash landfill in question receives the ash residue from various trash-to-energy plants in the region. The trash is incinerated at these plants, and the heat produced is used to generate electric power. The trash is burned in giant boilers attaining a temperature of 2300 degrees F. The byproduct is ash and some chunks of metal. All collection, retention, and incineration occurs at the plants and not at the landfill. The residue is then loaded onto trucks, dampened with water to minimize dust dispersal, and transported to the landfill. The residue is deposited in an excavated area which is lined by two layers of onesixteenth inch polyethylene material originally designed to contain hazardous materials. The deposited residue is then covered with gravel. The trucks then pass through a washing station to remove any dust. *3 The ash landfill receives no garbage, trash, or other materials which might undergo putrefaction. No offensive odors are produced nor are vermin attracted to the site. The double liners have a leachate collection mechanism which pumps any leachate from the container to a pretreatment plant and eventually to a municipal water treatment facility. The hydrogeologic characteristics of the area surrounding the facility are such that the surface and ground waters on the property flow easterly toward the Quinebaug River. The plaintiffs parcels are situated on the opposite side of the landfill, over one mile away to the northwest. All the plaintiffs claim classical aggrievement, and Robert G. Viens additionally claims statutory aggrievement under 8-8(a)(1). The court holds that statutory aggrievement is inapplicable both legally and factually. Factually, as noted above, the court has determined that there is no evidence that Robert G. Viens owned property abutting or within 100 feet of the landfill property before Putnam River Road, LLC, acquired 341 River Road on March 21, Legally, this action is seeking a declaratory judgment and injunctive relief and is not an administrative appeal from the granting of the special use permit. Therefore, 8-8 has no bearing in this case. Also, this plaintiff expressly pleaded classical aggrievement and not statutory aggrievement in paragraph 8 of the complaint as discussed earlier. Robert G. Viens contends that the cases of L.G. Associates v. Zoning Board of Appeals, 31 Conn.App. 12, 623 A.2d 494 (1993) and Pierce v. Harwinton Zoning Board of Appeals, 7 Conn.App. 632, 509 A.2d 1085 (1986) stand for the proposition that 8-8(a)(1) governs not only administrative appeals in zoning matters, but also collateral on such zoning decisions. These two cases do not support that proposition. Those decisions used 8-8(a)(1) in declaratory judgment cases to ascertain who must be made a defendant in such actions because any decision might affect their interests. The cases did not employ 8-8(a)(1) to determine who may be an aggrieved plaintiff with standing to bring such an action. Turning to the questions of classical aggrievement, the court observes that a party seeking declaratory and injunctive relief must establish standing to maintain such an action by showing that the party claiming it is Thomson Reuters. No claim to original U.S. Government Works. 2

5 Taft v. Wheelabrator Putnam, Inc., Not Reported in A.2d (2000) classically aggrieved, Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 5, 699 A.2d 995 (1997) The fundamental test for assessing classical aggrievement encompasses a two-fold determination, Bethlehem Christian Fellowship v. Planning and Zoning Commission, 58 Conn.App. 441, 443, 755 A.2d 249 (2000). *4 First, the plaintiff must successfully demonstrate a specific personal and legal interest in the matter as distinguished from a general interest shared by the members of the community at large, Id., 444, 755 A.2d 249. Second, the plaintiff must demonstrate that that specific personal and legal interest was specially injured or impaired, Id. The plaintiff need not prove to a certainty that such injury has occurred, but merely that the possibility exists for such adverse impact. Id. Also, a plaintiff must retain standing throughout the proceeding, i.e. the party must continue to possess that special and personal legal interest, Id. It is insufficient to establish aggrievement only at the time the action was End of Document filed, Id. In the present case, the court finds that the plaintiffs lost any special and personal legal interest in the operation of the ash landfill when Wheelabrator constructed a bridge and private access road to its facility in May The ash-carrying trucks do not pass by or near the plaintiffs parcels. The nearest part of the facility property is over a mile away from the nearest of these parcels. As described above the distance, construction, nature of the operation, the terrain, and the hydrogeologic circumstances surrounding the facility are such that there is no physically discernable negative impact possibly affecting the plaintiffs interest. There are no odors, vermin, discharges, noise, dust, or traffic emanating from the landfill. so as to reach the plaintiffs properties. Thus, the plaintiffs no longer possess any special, personal and legal interest in the operation of this ash landfill. Consequently, the court finds that the plaintiffs have failed to establish that, as of May 1999, they were classically aggrieved by the operation of an ash residue landfill at the Wheelabrator site Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 3

6 Taft v. Wheelabrator Putnam, Inc., 255 Conn. 916 (2000) 763 A.2d A.2d 1044 Supreme Court of Connecticut. Timothy P. TAFT et al. v. WHEELABRATOR PUTNAM, INC., et al. Attorneys and Law Firms Decided Dec. 26, **1044 Sheila A. Huddleston and Joseph P. Williams, Hartford, in support of the motion. Ernest J. Cotnoir, Putnam, in opposition. Opinion The motion of the named defendant, filed February 22, 2000, to dismiss the plaintiffs appeal and to vacate the judgment of the Appellate Court; Taft v. Wheelabrator Putnam, Inc., 55 Conn.App. 359, 742 A.2d 366 (1999); in which motion the defendant Putnam zoning commission joined, having been presented to the court, it is hereby ordered that the appeals are dismissed. The judgment of the Appellate Court is vacated and the appeals are remanded to that court with direction to dismiss the plaintiffs original appeal for lack of aggrievement. *917 McDONALD, C.J., dissenting. I dissent from the decision of the majority to vacate the judgment of the Appellate Court. Taft v. Wheelabrator Putnam, Inc., 55 Conn.App. 359, 742 A.2d 366 (1999). I believe that the actions of the named defendant-appellant, Wheelabrator Putnam, Inc. (Wheelabrator), disentitle it to vacatur of that decision. Vacatur is equitable relief, granted in those extraordinary cases in which the public interest would be served by that relief. Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26-27, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). The court must consider the actions of the parties in End of Document determining if vacatur is appropriate. The United states Supreme Court, in U.S. Bancorp Mortgage Co., observed that the remedy of vacatur is not justified in cases in which the moving party causes mootness through its own voluntary actions, save under exceptional circumstances. The court stated: The denial of vacatur is merely one application **1045 of the principle that [a] suitor s conduct in relation to the matter at hand may disentitle him to the relief he seeks. (Internal quotation marks omitted.) Id., at 25, 115 S.Ct In this case, Wheelabrator sought certification to appeal from the Appellate Court and, after its petition was granted; Taft v. Wheelabrator Putnam, Inc., 252 Conn. 918, 744 A.2d 439 (2000); moved for dismissal of the plaintiffs appeal to the Appellate Court and for vacatur of the Appellate Court decision. We thereafter remanded the case back to the trial court to determine whether the plaintiffs still had actual aggrievement. The trial court found that the plaintiffs were not aggrieved *918 at the time of the Appellate Court s judgment, since Wheelabrator had entered into a settlement with the plaintiffs before the Appellate Court s decision was released. The Appellate Court s decision was released in October, The settlement between the parties had been reached in March, Wheelabrator s motion to dismiss the plaintiffs appeal and to vacate the judgment of the Appellate Court, the first time the settlement was revealed, was filed in February, These circumstances present a classic example of when vacatur is not appropriate. Wheelabrator did not bring the settlement to the attention of the Appellate Court, thereby requiring that court to decide the issues, perhaps in Wheelabrator s favor. Having lost, Wheelabrator now seeks to vacate the decision. We should not order vacatur of that decision rendered without knowledge of circumstances created by Wheelabrator and kept from the Appellate Court, I believe, requires that this case be remanded to that court and dismissed as moot and that the motion for vacatur de denied. SULLIVAN, J., did not participate in the consideration or decision of this motion. Parallel Citations 763 A.2d 1044 (Mem) 2011 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 1

7 Taft v. Wheelabrator Putnam, Inc., 255 Conn. 916 (2000) 763 A.2d Thomson Reuters. No claim to original U.S. Government Works. 2