Keiser v. Zoning Commission
Keiser v. Zoning Commission
Opinion of the Court
Opinion
This case comes to us on remand from our Supreme Court for reconsideration in light of the
We first set forth the facts and procedural history, as stated in Keiser v. Zoning Commission, 62 Conn. App. 600, 771 A.2d 959 (2001). This case began when the defendants, Gilbert and Bennett Manufacturing Company and the water pollution control commission of the town of Redding (pollution control commission), jointly filed an application with the zoning commission for a special permit and site plan approval for the construction of a wastewater treatment facility on land owned by Gilbert and Bennett Manufacturing Company. Id., 602. The zoning commission scheduled a hearing to consider the application and, subsequently, the plaintiff filed a notice of intervention pursuant to General Statutes § 22a-19 (a).
The zoning commission and the pollution control commission filed a petition for certification to appeal from our decision to the Supreme Court. The petition challenged our determination that we could not review the trial court’s decision on the merits. The Supreme Court granted the defendants’ petition and, in the same order, remanded the matter to us for reconsideration in light of its holding in Nizzardo v. State Traffic Commission, supra, 259 Conn. 131. Keiser v. Zoning Commission, supra, 259 Conn. 921. Specifically, the remand stated that “[t]he petition for certification by the defendants, the zoning commission of the town of Redding and the water pollution control commission of the town of Redding, for appeal from the Appellate Court, 62 Conn. App. 600 (AC 19681), is granted. The case is remanded to the Appellate Court for reconsideration
In Nizzardo, our Supreme Court determined that § 22a-19 (a) permits a party to intervene in an administrative proceeding to raise environmental issues when two conditions are met. First, the Nizzardo court concluded that “§ 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene.” Nizzardo v. State Traffic Commission, supra, 259 Conn. 148. Second, the Nizzardo court determined that to qualify as a “verified pleading” under § 22a-19, a petition must “contain specific factual allegations setting forth the environmental issue that the inter-venor intends to raise.” Id., 164-65. The Supreme Court further stated that “[t]he facts contained therein should be sufficient to allow the agency to determine from the face of the petition whether the intervention implicates an issue within the agency’s jurisdiction.” Id., 165. “By requiring that intervention petitions under § 22a-19 allege facts setting forth the environmental claim that the intervenor intends to raise, we ensure that the agency will have the ability to determine upon a review of the petition whether the agency properly has jurisdiction over that environmental issue.” Id., 164.
In light of our Supreme Court’s remand and the Niz-zardo decision, we directed the parties in the present case to address in supplemental briefs and at oral argument whether Nizzardo has any impact on the present case. The plaintiff argues that he has met both of the conditions set forth in Nizzardo. He argues that unlike the notice of intervention m. Nizzardo, which was ruled insufficient to establish standing; id., 161; his notice contained specific factual allegations that set forth the envi
We first set forth our standard of review. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 870, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). “Atrial court’s determination that it lacks subject matter jurisdiction because of a plaintiffs lack of standing is a conclusion of law that is subject to plenary review on appeal.”
In accordance with Nizzardo, we first assess whether the zoning commission has jurisdiction over any environmental issues. After a thorough review of the zoning regulations, we conclude that the zoning commission does have such jurisdiction. Specifically, the regulations refer to environmental concerns in § 5.1, which is entitled Permitted Special Uses, § 5.2, which is entitled Site
Section 5.1.1 discusses the special permit application and in subdivision (b) requires in relevant part the submission of “[a] complete site plan, as detailed in section 5.2. The foremost objective in site development shall be protection of the natural . . . environment of the site, with emphasis on measures to control . . . water contamination ... as [it] relate [s] to the surrounding area.” The applicant also may be required, pursuant to § 5.1.1 (e), to submit “[s]upplementaiy data and expert studies ... in any areas of concern related to protection of public health [and] safety . . . (such as . . . environmental impact evaluations).” Section 5.1.3 (b) refers to required findings that the zoning commission must make to grant a special permit and provides that before any special permit is granted, the commission must determine, among other things, that “[t]he location of the site, and the location, nature, size and intensity of proposed buildings . . . uses and activities . . . will not impair the . . . natural environment of the nearby area . . . .” Section 5.1.3 (d) requires that the “[standards for environmental protection [in § 5.3] will be fully met.” Moreover, § 5.1.5 discusses conditions of approval for a special permit and provides in relevant part that “the Commission may modify a proposed site plan, or limit proposed uses ... or establish other conditions of approval necessary to protect health, safety ... or natural environment ... in granting a special permit. ...”
Section 5.2 addresses site plans for nonresidential uses and makes reference to environmental concerns. In § 5.2.4 (c), which deals with standards for approving site plans, the regulation provides in relevant part that site plans shall comprise a layout designed to protect public health and safety, with specific respect to “envi
Finally, § 5.3, entitled Environmental Protection Standards, provides in its introduction that “[t]he following standards apply to all Zones and are intended to supplement relevant Federal, State and local codes . . . .” Section 5.3.1 subsequently provides in relevant part that “[a]ny use which results in contamination of air, ground, water or the natural environment, beyond the specific limits prescribed below is prohibited. . . .” Section 5.3.2 then specifically defines hazardous substances and further adds in subdivision (c) that “[i]n no instance may the discharge of hazardous substances to air, ground, or water exceed the allowable limits established and administered by the State of Connecticut Department of Environmental Protection, by the State Health Code, and by any applicable Town code or ordinance.”
We conclude that those regulations place environmental concerns within the jurisdiction of the zoning commission. We also note that we construe the Niz-zardo court’s use of the term “jurisdiction,” as used in the phrase “environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding”; Nizzardo v. State Traffic Commission, supra, 259 Conn. 148; to mean that the agency has the power and authority to hear a case and to decide the issues raised. We reach that conclusion on the basis of Tower v. Miller Johnson, Inc., 67 Conn. App. 71, 73-77, 787 A.2d 26 (2001), a case which addressed the workers’ compensation commissioner’s subject matter jurisdiction. We stated in Tower that “[j jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exer
We can discern no compelling reason not to apply the definition of jurisdiction, as stated in Tower, to the present zoning commission context. We therefore conclude that in the present case, the zoning commission had the “power” and “authority” to hear and to determine environmental issues as they relate to its ultimate hearing and determination of the zoning application with which it was presented.
That conclusion is important in light of two arguments advanced by the zoning commission. The zoning commission argues that jurisdiction over the environmental issues in the present case rests with the department of environmental protection because of General Statutes § 22a-2 (a), which provides in relevant part that “[t]here shall be a Department of Environmental Protection which shall have jurisdiction over all matters relating to the preservation and protection of the air, water and other natural resources of the state. . . .” We are not persuaded by that argument.
Indeed, we note that even though an applicant may have to obtain certain permits from the department of environmental protection for various reasons, it is entirely likely that the applicant ultimately may also have to obtain approval from the local zoning commission for the proposed project. In so doing, a local zoning commission might consider other agency environmental permits as requirements that it must take into account when considering environmental issues and reaching its ultimate conclusion on the application with which it is presented.
Moreover, the zoning commission’s regulations in the present case make it clear that the zoning commission will consider environmental issues beyond, or in addition to, those required by the department of environ
Without more from the zoning commission, we cannot conclude that the jurisdiction of the department of environmental protection in any way impedes or negates the zoning commission’s “jurisdiction,” as we have defined that term, with regard to its hearing of and determining of environmental issues as part of its ultimate hearing and determination of the zoning application with which it is presented.
The zoning commission also argues that the zoning regulations apply only to environmental consequences of the uses of the proposed project, not to the construction of the project or to environmental problems that already exist on the land. That argument is in response to the plaintiffs core assertion that digging up the ground and constructing the waste treatment plant will disturb the hazardous waste in the ground and release it into the river adjoining the proposed location. We do not agree with the zoning commission’s argument.
A fair reading of the zoning regulations indicates that they apply to environmental issues that arise from aspects of the application apart from the ultimate use of the proposed project. Specifically, § 5.1.1 (b) refers plainly to “the foremost objective in site development” (emphasis added) in its discussion of the submission of a site plan and the goal of protecting the environment.
Moreover, the required findings in § 5.1.3 (b), necessary for the grant of a special permit, refer specifically to “[t]he location of the site” (emphasis added) with regard to not impairing the natural environment. The consideration of location obviously is different from a use consideration and implicitly contemplates an evaluation of the grounds on which a proposed project rests. The conditions of approval section, 5.1.5, also supports our conclusion that the zoning regulations provide for more than just an analysis of a proposed project’s use. That section provides in relevant part that “the Commission may modify a proposed site plan, or limit proposed uses” (emphasis added) to protect health, safety or the natural environment. That disjunctive language indicates that uses and siting are two different considerations.
Having concluded that the zoning commission does have jurisdiction, we next consider, in accordance with Nizzardo, whether the plaintiffs intervention petition qualified as a verified pleading. To qualify under Niz-zardo, the pleading must contain specific factual allegations that identify the environmental issues the intervenor intends to raise. It must also do so in a manner that will allow the zoning commission to determine whether the intervention implicates an issue within its jurisdiction.
We conclude that the plaintiffs petition satisfies that test. Of the statements alleged in the petition, one
Moreover, we conclude that the allegation is sufficient because it meets the desired effect of that prong of the Nizzardo test that seeks to ensure that the zoning commission will be able to determine, on the basis of the intervention petition, whether it has jurisdiction over the environmental issues raised. The allegation contained in the plaintiffs petition in the present case provides enough specificity to allow the zoning commission to make that determination. The allegation, taken in its barest form, alerted the zoning commission that the plaintiff had concerns about hazardous waste. The zoning regulations discuss the environment and hazardous waste. Specifically, § 5.1 discusses protecting the environment from water contamination, which obviously can occur by way of disturbing waste in the ground that may get into the river adjoining the land. Section 5.2 also applies and refers to controlling hazardous discharges for environmental protection. Finally,
Upon reconsideration in light of Nizzardo, in accordance with the remand from our Supreme Court, we conclude that the plaintiff has demonstrated that he has standing to intervene in the proceedings before the zoning commission and to participate in proceedings before the trial court.
The judgment is reversed and the case is remanded for a hearing on the merits.
In this opinion the other judges concurred.
General Statutes § 22a-19 (a) provides in relevant part,: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading' asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”
We note that although standing and jurisdiction have been at issue throughout the procedural history of the present case, we review the question of whether the plaintiff has standing apart from any previous decisions because the standing question has not been decided previously using the Nizzardo test. Nonetheless, the standard we have articulated still is applicable.
We note that in addressing the zoning commission’s argument, we have not based our determination on any particular statute, permit requirement or permitting process involving the department of environmental protection or any other agency. Rather, we simply reveal the potential flaws in the zoning commission’s argument. We decline to rule more specifically in light of the zoning commission’s failure to provide more specific authority and the record in this particular appeal. Specifically, the record does not reveal the extent of the involvement by the department of environmental protection with the site, what permits were required for the project in question, what General Statutes apply or what permits were, in fact, granted or denied by the department.
The four other allegations state, in essence, who the petitioner was, that he was familiar with the application in issue, the statutory language of General Statutes § 22a-19 and that an alternative to the proposed placement of the plant existed, namely, locating the plant elsewhere.
Reference
- Full Case Name
- BASIL E. KEISER v. ZONING COMMISSION OF THE TOWN OF REDDING
- Cited By
- 5 cases
- Status
- Published