2007 Ct. Sup. 10077
No. CV06-4022523SConnecticut Superior Court Judicial District of New Haven at New Haven
June 6, 2007
MEMORANDUM OF DECISION ON MOTION TO STAY DISCOVERY
THOMAS J. CORRADINO, JUDGE.
In this case the court has permitted extensive discovery. The defendant has filed a motion to dismiss on various grounds and in conjunction with that motion, has filed a motion to stay discovery. Argument was held on the motion to stay discovery and the court will now attempt to address that motion.
(1)
Quoting from a 1912 case which in part relied on an 1838 case, the court in Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297 (1982), said that “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.”
But that observation is not dispositive of the claim by the plaintiff that it has the right to conduct discovery to meet the jurisdictional challenge posed by the defendants’ motion to dismiss. The court i Standard Tallow Corp. v. Jowdry, 190 Conn. 48 (1983), said the following in footnote 7 at page 57:
The contention of the defendant that to order discovery would impermissibly impose the court’s jurisdiction over the defendant prior to having even made the determination as to whether the court in fact had jurisdiction over this defendant, is erroneous. A court must have jurisdiction to determine its own jurisdiction, especially where, as here, the defendants have by their appearance put that question into issue. Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227
CT Page 10078 (1980). The court may even apply sanctions for failure to obey a discovery order intended to establish or to refute jurisdiction. Id.; accord Ins. Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 709 (1982).
It should also be noted that there are due process implications surrounding the opportunity for discovery once a motion to dismiss is filed. Horton and Knox note that “if there is a disputed issue of fact critical to the determination of (a) motion to dismiss, due process requires an evidentiary hearing”, Conn. Practice Series, Vol. I, page 479, citing Bradley’s Appeal from Probate, 19 Conn.App. 456, 467 (1989). Insofar as a resolution of the motion to dismiss in this case will raise disputed issues of fact, it would be an odd interpretation of procedural due process rights that would prevent a litigant, such as the plaintiff here, from using discovery procedures to prepare its factual objections to a dismissal — discovery procedures, it should be noted, which are made available for all other stages of litigation.
(2)
The defendant argues for the stay on three grounds (1) the court must first decide the motion to dismiss since it is based on a claim of lack of subject matter jurisdiction; (2) “discovery is not needed in order to address the issues raised in the motion to dismiss”; (3) discovery will cause unnecessary delays, disruptions, and expense to the city.
If the premise set forth in ground (2), supra, is not supportable for the reasons set forth in the previous discussion, ground (1) cannot be relied upon and neither can ground (3) since inconveniences caused by the discovery is not “unnecessary”.
The question then becomes is discovery needed to address the issues raised in the motion to dismiss?
Or to put it another way, paraphrasing P.B. § 13-2, is the discovery sought geared to the production and inspection of documents and information “material to the subject matter involved” — here defending against the motion to dismiss? The discovery must be aimed at eliciting jurisdictional facts. If the discovery requested would be of no assistance in meeting the attack on jurisdiction, then the motion to stay is in order and the court should go directly to deciding the motion to dismiss. Cf case cited by defendant, West Hartford v. Martha, Cullina LLP, 85 Conn.App. 15, 26-27 (2004).
CT Page 10079 Posing the issue in this way requires, at least in the court’s view, some examination of the motion to dismiss — how else can the court determine if the discovery is immaterial to the issues raised by that motion?
(3) (a)
The court will reference the defendant’s statement of facts in its motion to dismiss. Acorn owns property in the town in a so-called Industrial Planned Development (IPD) zone. On its own motion the defendant Commission “submitted to itself its own petitions to amend the Zoning Regulations and Zoning Map” (page 2 of the defendant’s memorandum). One of the proposed amendments was to create a Planned Village District (PVD) which would apply to the Acorn site and would apparently contain industrial, commercial, and residential uses. At page 5 of its memorandum the defendant argues that prior to an August 22, 2006 public hearing, “the PVD district was not mapped on the Zoning Map, thus effectively rendering the PVD district a floating zone (references to record). The net result with respect to the Acorn property, therefore, was that it retained its designation as an IPD district exactly as it was mapped before the Commission opened the public hearing on its own petition.” The memorandum goes on to reference the record to the effect that the defendant’s chairman explained the map change was withdrawn because the Commission needed more time to review the matter — that would be done “in the very near future.” Acorn suggested that a regional shopping center be added to the list of uses in the PVD zone. The chairman said that would be looked at but he did not want to decide “at the last minute of what we are going to do with that.” At a continued public hearing, “the amended regulations included the new PVD district but this district was not mapped on the Zoning Map.” When the Legal Notice of Decision was filed, Acorn filed an appeal.
Based on the foregoing, the defendant has moved to dismiss the first count. Its memorandum refers to accepted law:
There is no constitutional right to judicial review of the action of a planning or zoning agency. Such review exists only under statutory authority, Schwartz v. Town PZ Commission, 168 Conn. 20, 24 (1975).
It is then noted that Section 8-8(b) allows appeals by “any person aggrieved by any decision of a board . . .”. In this regard, Fort CT Page 10080 Trumbull Conservancy, LLP v. PZ Commission, 266 Conn. 338, 559 (2003) says, “. . . we have stated that no appeal exists where a planning and zoning commission issues a decision that is merely preliminary and not binding without further action by a municipal agency.” Relying on the above principles, the defendant argues there has been no final decision because the withdrawal of the PVD map amendment was not a final decision on the merits. The Commission did not believe its decision was final, as noted the chairman indicated the issue would be reviewed. No change in Acorn’s existing zoning designation has been made.
The defendant quotes from State v. State Employee’s Review Bd. 231 Conn. 391, 403-04 (1994), which lists the reasons behind the requirement of finality which fall into three parts:
1. By avoiding premature adjudication, courts will avoid entangling themselves in abstract disagreements over administrative policies;
2. The basic consideration is whether “the process of administrative decision-making has reached a stage where judicial review will not disrupt the orderly process of adjudication.
3. Another consideration is whether “the agency intended its decision to be final.
Based on the previously mentioned factual claims and relying on this case and a case which follows it, Nizzardo v. State Traffic Commission, 259 Conn. 131, 146-48 (2002), the defendant argues that clearly there was no final decision here.
But the defendant does not rest its argument on lack of finality. It cites Barlow v. PZ Commission, 194 Conn. 187 (1984), for the proposition that “failure to act on a proposal cannot be challenged by an administrative appeal.” There the trial court’s issuance of a mandamus was upheld which ordered the defendant to decide a site plan application which it had refused to review. An appeal was no remedy since it “could only address the merits of the application and not the Commission’s refusal to consider the application on the merits” id. p. 196.
Finally, practical problems are mentioned. The matter was not brought to a vote so the Commission put no statement of reasons on the record. The court is being asked to review an issue never developed on the record. CT Page 10081
“Morever” Acorn seeks a court order requiring the Acorn property to be rezoned from IPD to PVD; “thus the plaintiff seeks an order attacking the presumptive valid (existing) IPD designation, even though the (present) record contains neither the record of proceedings when the Commission adopted the existing IPD designation nor a complete record of reasons for not changing the existing designation”.
In fact, it is said, Acorn has a remedy if it wishes a map change to PVD — file its own petition to that effect. If the Commission renders an unfavorable decision it can appeal, if it refuses to act, welcome t Harlow v. PZ Commission, supra.
(b)
The court will try to address these arguments as a reason to stay discovery. Does the discovery sought merely go to the merits of the Acorn claim or does it seek facts that support its claim that the court has subject matter jurisdiction? In this regard the complaint must be examined and in paragraph 11 it states that “in deciding to eliminate from the petition and/or not approve the zoning map amendment and the change of zoning designation of the Acorn Property to a PVD district, the Commission acted illegally, arbitrarily, and in abuse of the discretion vested in it in one or more of the following ways . . .” Several relevant subparagraphs then say the following:
“(a) The Commission’s action was the product of improper considerations and or influences on the Commission relating to the potential use of the Acorn Property by a third party.
(b) The Commission or certain of its members considered information from outside the record and/or engaged in ex parte communications.
(c) The Commission’s action was predetermined.
(d) The Commission deprived plaintiff of its right to due process.
(e) The Commission considered and/or based its action on improper factors, reasons and/or criteria that are not contained in the Connecticut General Statutes and the Zoning Regulations.
Subparagraph (g) goes on to say the actions and failures to act of the Commission regarding the map change and rezoning to a PVD district occurred even though the change “fully complied with the applicable criteria of the Connecticut General Statutes and the Zoning Regulations. CT Page 10082 Indeed these actions “were based upon improper and extraneous reasons and/or motives”, subparagraph h.
It is important to read the basic Acorn claim with other earlier paragraphs in the complaint. In paragraph 3 it was noted that the Commission submitted to itself a petition regarding the map change and the PVD designation. No one spoke or submitted any evidence “in opposition to such change in the zoning designation”, par. 6. No member of the Commission during the public hearings indicate any opposition (par. 7). But in fact, on August 25, 2006 the Commission decided to not approve the zoning map amendment and to eliminate from the petition the Acorn property designation as a PVD district (par. 8, 9). All of this was done for the allegedly improper reasons set forth in the previously referenced paragraph 11.
The examination of the complaint is related to the decision on the motion to stay. This is so because the law is quite clear that in addressing a motion to dismiss, the pleadings are construed “broadly in favor of the plaintiff,” Shay v. Rossi, 253 Conn. 134, 140 (2000). It would seem to follow that the same presumptive validity should be given to the complaint in deciding whether discovery designed to elicit jurisdictional facts in support of the complaint should be permitted where a subject matter jurisdiction motion is filed. How else is a court fully and fairly exercise its jurisdiction to decide whether it has jurisdiction?
Taking the allegations of the complaint in their most favorable light to rebut the jurisdictional attack, it seems to say that but for improper considerations, ex parte communications, predetermination, and actions interfering with Acorn’s right to due process the map change and PVD zone change regarding the Acorn property would have been approved. This is not a case where the subject matter at issue was proposed by a private or corporate citizen and the zoning authority refused to act on it. Harlow v. PZ Commission, supra. What Acorn desires to go into effect regarding a PVD district was contained in a petition the Commission had already made to itself. No one spoke in opposition to it in public meetings. In fact the plaintiff’s brief in opposition to the motion to stay notes that at a July 25, 2006 public hearing, the Commission chairman stated a PVD district was “planned” for the Acorn property. Acorn spoke for it and allegedly for improper reasons part of the petition was approved but that part which the Commission originally proposed, affecting the Acorn property was eliminated.
If these allegations are proven, and of course they may very well not be, then comments on the absence of a complete record and an expressed CT Page 10083 desire to examine the matter further by the Commission chairman miss the point. The record would be in the state it is because the Commission, through its improper actions (again if proven), prevented a fuller record for illegal reasons which were arbitrary and in abuse of its discretion to paraphrase paragraph 11.
Accepting these premises, if they are established, the absence of finality argument is not persuasive. Judicial review can hardly be said to threaten to “disrupt the orderly process of (administrative) adjudication,” State v. State Employees’ Review Bd., supra; the whole claim is that the “process” was far from orderly. There would be no need to protect the local agency from “judicial interference until an administrative decision has been formalized”, id. — judicial interference is arguably necessary to ensure the very integrity of the administrative process.
State Employees also mentioned that “another significant consideration,” id., is whether the agency intended its decision to be final.
In a situation where the allegation is that the decision for the PVD zone regarding the Acorn property would have been final but for illegal and ex parte communications in violation of statute, zoning laws and the requirements of due process this observation on the Commission’s intention regarding finality can hardly be used to deny the wronged party access to the courts. The point is if the allegations are established, the Commission improperly and unintentionally nullified the rendering of a final decision which it would otherwise have reached absent the claimed illegalities. Under these circumstances, how on earth can the defendant Commission not be estopped from saying one reason the court has no subject matter jurisdiction is that we did not render a final decision — exactly, that is what the case is[1] all about.
(c)
The plaintiff will have a heavy burden to establish its allegations but if it does, the analysis given by the court would not appear to require dismissal. That being the case, the court has difficulty in granting the motion to stay that discovery which is aimed at developing facts in defense of the court’s jurisdiction.
The case law does not seem to suggest a contrary result. Sendak v. Ridgefield PZ Commission, 7 Conn.App. 238 (Borden, J. 1986), is an interesting case in this regard. The former Section 8-28 was involved which provided in relevant part that “any person aggrieved by an CT Page 10084 official action or decision of a planning commission including a decision to take no action . . . may appeal therefrom . . .” The plaintiffs appealed a decision to enter into stipulated judgments regarding several actions filed by a company seeking to subdivide its property. The court held, interestingly enough . . .” absent bad faith, collusion or other improper conduct by the parties a planning commission’s decision to settle an appeal by way of a stipulated judgment is not an official action or decision within the meaning of (§ 8-28) “. . . page 244. Sendak, which is cited by the defendant in its motion to dismiss memorandum, is of course not directly on point. But it does indicate that the statutes addressing zoning and governing the right to appeal are not meant to be a straight jacket barring or even delaying private or corporate citizens from seeking redress in the courts when local agencies are proven to have violated basic rights and procedural values. Even a system placing great value on “settlement” of cases, as noted in Sendak, will not tolerate collusion or bad faith to encourage that process.[2]
Also, in a very basic sense, the problem before the court is related to the concept of standing or aggrievement, lack of which is claimed as another reason why the court has no subject matter jurisdiction to entertain this matter as to both counts. In this regard it should be noted that “the question of aggrievement is essentially one of standing . . .” Beckish v. Manafort, 175 Conn. 415, 419 (1978), Quarry Knoll Corp. v. PZ Commission, 256 Conn. 674, 701 (2001). What is aggrievement . . . “Aggrievement requires a showing that the plaintiffs have a specific, personal, and legal interest in the subject matter of the decision as distinguished from a general interest . . .” Hughes v. Town PZ Commission, 156 Conn. 505, 507. As Fuller puts it, classic aggrievement requires a “specific personal, and legal interest in the subject matter of the decision” and proof that “this specific personal and legal interest has been specially and injuriously affected by the decision”, Conn. Land Use Law and Practice, Fuller, Vol. 9A page 151, § 32.5.
Here, again, if the plaintiff is able to establish its allegations through discovery, its property interest, its use of the property in question will have been injuriously affected because of the illegal and arbitrary actions of the defendant. Then comes Schwartz v. Town PZ Commission, 168 Conn. 20 (1975). There the court ultimately held that the trial court did not err in dismissing the appeals for lack of aggrievement — no property rights of the plaintiffs were affected. The Commission had amended the zoning regulations to create, as floating zones, three new shopping districts. But the court noted the Commission did not enact the further amendments to apply the new zones to any CT Page 10085 particular areas in deprivation of any property or legal rights. If a zone change is granted and the plaintiffs are aggrieved, then and only then can they appeal. But in relevant language, the court said: “The due process clause of the fourteenth amendment requires an opportunity for a hearing at a meaningful time and in a meaningful manner appropriate to the nature of the case.” The court noted such an opportunity was afforded, the plaintiffs attended the hearings and argued against the amendments. The court went on to say: “Moreover, the root requirement of due process is that an individual be given an opportunity for a hearing before he (she) is deprived of any significant property interest” “. . . In this case the plaintiffs have not been deprived of any property interest”, id. Page 24.
Here, if the plaintiff proves its allegations, the plaintiff cannot be said to have received a fair hearing for the reasons stated in paragraph 11 of the complaint. Also, if a “but for” analysis is applied to any such allegation so proven, they have obviously been deprived of a legal right respecting the use of the property owned by them.
In any event, for the foregoing reasons the court cannot say that the discovery requests are frivolous toward the end of deflecting the lack of subject matter jurisdiction attack and thus cannot grant the motion for stay.
Apart from these observations in the memorandum attached to its motion to stay, the defendant claims that the plaintiff’s discovery requests are overly broad and burdensome. Nothing in the court’s opinion is meant to suggest the defendant cannot make objection to particular discovery requests on such grounds as long as there is no interference with the plaintiff’s fair right to defend against a lack of subject matter jurisdiction. Such objections can be set down for argument.
But for the reasons stated, the court denies the motion to blanketly stay all discovery.
CT Page 10092