265 Conn. 114

BRT GENERAL CORPORATION ET AL. v. WATER POLLUTION CONTROL AUTHORITY OF THE TOWN OF MIDDLEBURY

(SC 16927)

Borden, Norcott, Katz, Vertefeuille and Zarella, Js.

*115Argued March 11

officially released July 29, 2003

Neil R. Marcus, with whom was Julia B. Morris, for the appellants (plaintiffs).

Maureen Danehy Cox, with whom, on the brief, was Kenneth J. Pocius, for the appellee (defendant).

Opinion

BORDEN, J.

The principal issue in this appeal1 is whether the trial court lacked subject matter jurisdic*116tion over the plaintiffs’ mandamus action because they had failed to exhaust the administrative remedies provided in General Statutes §§ 22a-430 (f),2 22a-4363 and *11722a-437.4 The plaintiffs, BRT General Corporation and Forest Walk, LLC,5 appeal from the judgment of the trial court, which had denied their application for a writ of mandamus to direct the defendant, the water pollution control authority of the town of Middlebury, to consider their application to “connect”6 to the town’s sewer system. The defendant claims that the trial court lacked subject matter jurisdiction over this mandamus *118action because the plaintiff had failed to exhaust its administrative remedies. With the exception of one of the determinations of the trial court that the plaintiff challenges on appeal, we agree with the defendant. Accordingly, we reverse the judgment of the trial court as to those determinations, and we remand the case to that court with direction to dismiss the related counts of the plaintiffs action. We affirm the judgment of the trial court with respect to the one determination for which that court had subject matter jurisdiction.

The following facts and procedural history are undisputed. Prior to the events at issue in this appeal, the town of Middlebury (town) created the defendant as its water pollution control authority pursuant to General Statutes § 7-246.7 Under orders from the state depart*119ment of environmental protection (department), the town constructed a sewer system in the early 1970s. Middlebury Plan of Conservation and Development (2001) § 9.33, p. 86. Shortly thereafter, the town recognized that its “groundwater supplies . . . were not sufficient for a community-wide water system.” Id., § 9.32, p. 86. Additionally, the town concluded that overreliance on the town sewer system would exacerbate the problem because the system delivered wastewater to a treatment plant in Naugatuck, rather than returning it to the ground in the town. Id., §§ 9.32 and 9.33, p. 86. Decreased use of the town sewer system, and increased use of local, residential septic systems, would return more water to the ground in the town, thus alleviating the water shortage. Id., § 9.32, p. 86. Recognizing this, the town recommended that “sewer service not be extended into new areas” in its 1973 plan of development. Id., § 9.33, p. 86. Since then, the town has maintained a policy “of sewer avoidance in those sections of the community not already served by sewers . . . .” Id., § 9.33, p. 89. The town’s formally adopted plan of conservation and development provides that “[extensions of the sewer system in residential areas should be avoided, except as a last resort to alleviate a significant *120public health problem where there is no other feasible alternative.” Id. The defendant promulgated regulations that restricted the right to connect to the town sewer system to owners of “property abutting on any street, alley, or right-of-way in which there is now located or may in the future be located a public sewer . . . .” Middlebury Water Pollution Control Authority Regs., art. Ill, § 4.

The plaintiff is the assignee of a contract to purchase approximately thirty-three acres of land within the town, on which it planned to develop a residential housing project containing 286 units. The property does not abut a street, alley or right-of-way in which the sewer system is located. Furthermore, the property does not fall within the areas that the town had designated for sewer service.

In September, 2000, the plaintiff contacted a civil engineer employed by the defendant and expressed an interest in gaining access to the town’s sewer system in order to service the property. The engineer advised the plaintiff to “[c]ontact the [defendant] concerning [the defendant’s] application and design review process as soon as possible.” The plaintiff met informally with the defendant in October, 2000, to discuss that process. In January, 2001, the plaintiff filed a formal application with the defendant for an extension of the town’s sewer system, such that it purportedly would abut the property, and enable the plaintiff to connect to it pursuant to article III, § 4, of the defendant’s regulations.8

Before the defendant took any action on the plaintiffs application to extend the sewer system, the plaintiff procured an option to purchase an easement over neigh*121boring property that abutted the sewer system. The plaintiff procured this option because, in its view, after purchasing the easement, the property would abut the sewer system within the meaning of article III, § 4, of the regulations, thereby entitling the plaintiff to “connect” with the sewer system. On October 2, 2001, the plaintiff filed a revised application entitled, “Application for Sewer Extension, Connection and Operation.”

The plaintiff gave a presentation concerning its application at a meeting held by the defendant on January 15, 2002. After the presentation, including a question and answer period, the defendant rejected the plaintiffs application by a unanimous vote, stating that it “did not see any reason to entertain an extension of this sewer line . . . .” The plaintiff did not appeal from the defendant’s action to the department.

The plaintiff filed this action on February 20, 2002, seeking a wilt of mandamus directing the defendant to grant the plaintiffs application. The plaintiff alleged that “[b]y summarily refusing to entertain [its] [application, the [defendant] failed to perform its administrative function.” (Emphasis in original.) Furthermore, the plaintiff claimed that the defendant was required, under its own regulations, to “grant [its] [application and issue the [p]laintiff a permit to connect [the] [p]roperty to the sewer system of the [t]own” because, the plaintiff alleged, alter procuring the easement, the property abutted the sewer within the meaning of article III, § 4, of the defendant’s regulations.

After a trial to the court, the court determined that: (1) the defendant properly had considered the plaintiffs application, thus performing its administrative function; (2) the plaintiffs application was, in fact, an application for an extension of the sewer system, not an application for a connection to the sewer system within the meaning of article III, § 4, of the defendant’s regulations; and (3) *122the defendant properly had exercised its discretion in denying the plaintiffs application to extend the sewer system. See Clark v. Gibbs, 184 Conn. 410, 419, 439 A.2d 1060 (1981) (mandamus may not issue to force city clerk, acting within her discretion in preparing budget referendum forms, to adopt specific language requested by certain residents); cf. Archambault v. Water Pollution Control Authority, 10 Conn. App. 440, 446, 523 A.2d 931 (1987) (where, under town’s regulations, decision to construct sewer extension is discretionary, mandamus may not issue to force town to grant extension). The court rendered judgment accordingly. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly determined that: (1) the defendant actually had considered the plaintiffs application for a sewer extension, thus complying with its regulations; (2) the plaintiffs application was for a sewer extension, rather than a sewer connection; (3) the defendant’s decision “not to process” the plaintiffs application was within the defendant’s discretion; (4) the purchase of an easement across land abutting a sewer line did not entitle the plaintiff to connect to the sewer system under the defendant’s regulations; and (5) the sewer system was not intended to service the plaintiffs property. The defendant claims that the trial court lacked subject matter jurisdiction over this mandamus action because the plaintiff had not exhausted its administrative remedies under §§ 22a-430 (f), 22a-436 and 22a-437. We conclude that the trial court lacked jurisdiction to make the determinations challenged in the plaintiffs latter four claims on appeal. We conclude, however, that the trial court had jurisdiction to make the determination that the plaintiff challenged in its first claim, namely, that the defendant actually had considered the plaintiffs application for a sewer extension. We further conclude that the trial court properly determined that the *123defendant actually had considered the plaintiffs application.

Our recent decision in River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 809 A.2d 492 (2002), controls the resolution of this appeal. In River Bend Associates, Inc., we held that a residential housing developer was required to pursue its administrative remedies prior to seeking judicial review of a decision of the water pollution control authority of the town of Simsbury denying the developer’s application to connect certain real property within the town to the sewer system. Id., 87. We see no material basis to distinguish the facts of present case from those of River Bend Associates, Inc.

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctr ine would be consistent with the statutory scheme. . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief. . . . Waterbury v. Washington, 260 Conn. 506, 529-30, 800 A.2d 1102 (2002).

“If the available administrative procedure . . . provide [s] the plaintiffs with a mechanism for attaining the remedy that they seek . . . they must exhaust that remedy. . . . Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 629-30 n.9, 577 A.2d 1017 (1990). The plaintiffs preference for a particular- remedy does not determine the adequacy of that remedy. [A]n administrative remedy, in order to be adequate, need not *124comport with the [plaintiffs’] opinion of what a perfect remedy would be. . . . Kish v. Cohn, 59 Conn. App. 236, 240, 756 A.2d 313 (2000).” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, supra, 262 Conn. 100-101.

“Section 22a-430 (f) provides that any permit denied or order issued pursuant to that section [such as the denial of an application for a sewer connection by a local water pollution control authority]9 shall be subject to a hearing and appeal as provided in § 22a-436 and ... § 22a-437. Section 22a-436 provides that any person aggrieved by an order or decision to deny an application may request a hearing before the commissioner *125[of the department]. Section 22a-437 provides that any person aggrieved by a decision by the commissioner may appeal from a final determination of the commissioner to the Superior Court.” Id., 101.

“When an appeal is taken as authorized under § 22a-430 (f), the commissioner has full authority under § 22a-436 to consider facts and evidence and to revise the authority’s action on the application as appropriate. If the plaintiffs are aggrieved by the commissioner’s decision, then they can pursue an appeal to the Superior Court pursuant to § 22a-437.” Id., 102.

Accordingly, as we determined in River Bend Associates, Inc., with respect to the plaintiff in that case, “the department was the appropriate agency to which [the plaintiff in the present case] could have appealed the denial of the application. Thus, the [plaintiff] had an adequate administrative remedy that [it] failed to exhaust.” Id.

At oral argument before this court, the plaintiff contended, without citation to any supporting authority, that the exhaustion doctrine should not apply in the present case because it seeks a writ of mandamus, rather than the declaratory and injunctive relief that was sought in River Bend Associates, Inc. We disagree. The department has the authority to grant the relief sought by the plaintiff in the latter four of its five claims on appeal. Specifically, in those four claims, the plaintiff seeks a writ ordering the defendant to grant the plaintiffs application for a sewer connection. “When an appeal is taken as authorized under § 22a-430 (f), the commissioner has full authority under § 22a-436 to consider facts and evidence and to revise [the defendant’s] action on the application as appropriate.” Id.

The plaintiffs first claim on appeal, however, that the trial court improperly determined that the defendant actually considered the plaintiffs application for a *126sewer extension, requests relief that would not be available in an appeal under § 22a-430 (f). Under this claim, the plaintiff requests a writ compelling the defendant to “review the application submitted by [the plaintiff] . . . and process this application in a timely manner.” Section 22a-430 (f) does not provide for this relief. Section 22a-430 (f) provides for an administrative hearing by the commissioner to review “an order or decision to deny an application . . . .” (Emphasis added.) Id., 101. There is no administrative remedy under § 22a-430 (f) to review the alleged failure of the defendant to act at all in response to the plaintiffs application. Therefore, the trial court did not lack jurisdiction to review that claim by virtue of the exhaustion doctrine.

The plaintiff may not prevail, however, on the merits of its claim that the trial court improperly determined that the defendant actually considered the plaintiffs application for a sewer extension. Although we review the court’s factual finding under the clearly erroneous standard; Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003) (finding of fact clearly erroneous “ ‘when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ ”); the record amply supports the trial court’s finding that the defendant reviewed, and then denied, the plaintiff’s application for a sewer extension. In its meeting of January 15,2002, the defendant heard a full presentation of the plaintiffs application. Following that presentation, the plaintiff fielded several questions from the defendant. Finally, after this substantial consideration, the defendant determined that the plaintiffs application was, in essence, an application to extend the sewer system and, based upon the town’s long established policy of “sewer avoidance,” the defendant unequivocally denied the plaintiffs application by a *127unanimous vote. The plaintiffs claim that the defendant neither considered nor acted upon the application is simply contrary to the undisputed facts of this case.

The judgment is affirmed with respect to the trial court’s determination that the defendant actually considered and denied the plaintiff’s application for a sewer extension; the judgment is reversed with respect to the trial court’s determination of the plaintiffs remaining claims, and the case is remanded to that court with direction to dismiss those claims for lack of subject matter jurisdiction.

In this opinion the other justices concurred.

BRT General Corp. v. Water Pollution Control Authority
265 Conn. 114

Case Details

Name
BRT General Corp. v. Water Pollution Control Authority
Decision Date
Jul 29, 2003
Citations

265 Conn. 114

Jurisdiction
Connecticut

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