40 Conn. App. 75 | Conn. App. Ct. | 1996
The plaintiff appeals from a declaratory judgment in which the trial court refused to grant declaratory relief because it concluded that there was no actual controversy between the parties. The plaintiff claims that the trial court improperly concluded that he was not entitled to seek declaratory relief. We agree with the plaintiff and conclude that the plaintiff has shown the requisite degree of uncertainty as to his rights as a property owner, sufficient to entitle him to seek declaratory relief.
Certain facts and procedural history are relevant to this appeal. The plaintiff brought this declaratory judgment action, challenging the constitutionality of an amended Trumbull subdivision regulation.
Upon our granting of a petition for certification, the defendant planning and zoning commission of the town of Trumbull (commission) appealed to this court. That appeal was transferred to our Supreme Court pursuant to Practice Book § 4023. Our Supreme Court held that “where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation’s invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment. Thus, the plaintiffs in this case should have brought a declaratory judgment action in order to raise their challenges to the facial invalidity of the regulation.” Bombero v. Planning & Zoning Commission, 218 Conn. 737, 745-46, 591 A.2d 390 (1991). Accordingly, the plaintiff then brought the present declaratory judgment action.
Following a hearing and testimony, the trial court denied the plaintiffs request for declaratoiy relief and held that “there is no actual controversy between the parties as required by Connecticut Practice Book § 390 (a) and (b) and that there is no sufficient practical need for the declaratory judgment which the plaintiff seeks.”
In this appeal, the plaintiff claims that (1) the trial court improperly held that the plaintiff is not entitled to seek declaratory relief, (2) the regulation adopted by the commission implicates the provisions of both article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States consti
The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29
Statutes and rules relating to the remedy of declaratory judgments are given a liberal construction to effectuate their purposes. Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907 (1947). “One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed . . . is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation.” (Emphasis added.) Sigal v. Wise, 114 Conn. 297, 301-302, 158 A. 891 (1932).
Our Supreme Court has recognized that its “cases have not always been consistent in requiring a declaratory judgment action as the method by which to chai-
In spite of the acknowledged variance to be found among the holdings of cases where declaratory relief has been sought, certain principles and recurrent factors have emerged. A plaintiff should have a legal or equitable interest in the controversy. See Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995); Lipson v. Bennett, 148 Conn. 385, 389, 171 A.2d 83 (1961); Board of Education v. Board of Finance, 127 Conn. 345, 347-48, 16 A.2d 601 (1940). A plaintiff should need an authoritative settlement of that interest so that he may avoid the expense of future litigation or action. Sigal v. Wise, supra, 114 Conn. 301. The trial court should consider equitable principles in determin
In land use cases, a plaintiff who has applied to an administrative agency for a permit, variance, subdivision or similar relief, cannot attack the constitutionality of the provision governing the issuance of that relief when appealing from that agency’s decision. Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981) (appeal from denial of site plan application); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968) (subdivision appeal); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950) (application to build garage). A plaintiff may, however, attack the constitutionality of the regulations in an independent proceeding. St. John’s Roman Catholic Church Corp. v. Darien, supra, 149 Conn. 718.
The plaintiff was previously found by another trial court to be adversely affected by the regulation.
The plaintiff in the present case claims that the regulation is void for vagueness and has presented evidence that the validity of the regulation is a question in which other property owners may have an interest. Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989). If the plaintiff had filed a subdivision application with the defendant commission in an attempt to determine conclusively whether the regulation prohibited him from subdividing his property, he could not have simultaneously appealed from the denial of that application and also attacked the constitutionality of the zoning regulation. Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981).
We are not aware of any Connecticut case that requires a plaintiff first to apply for a permit, variance, subdivision or other similar relief before the plaintiff can be permitted to bring a subsequent declaratory judgment action in order to determine the constitutionality of the regulation that governs such relief. Such a requirement would not be in keeping with the highly remedial relief afforded by declaratory judgment actions. See Sigal v. Wise, supra, 114 Conn. 301-302. We must also, nevertheless, recognize the fundamental requirement that in order to attack the constitutionality of regulations, the plaintiff must demonstrate that his interests are adversely affected in that a legal or equitable interest is uncertain or in danger of loss. St. John’s Roman Catholic Church Corp. v. Darien, supra, 149 Conn. 718.
On one occasion, our Supreme Court used its discretion to permit a plaintiff to bring a declaratory judgment action in order to determine the constitutionality of legislation governing the licensing of real estate brokers despite the plaintiffs having applied for and been granted a real estate broker’s license under the provisions of that legislation. Cyphers v. Allyn, supra, 142 Conn. 702. In that case, the Supreme Court found that “[w]hether there is a valid reason for refusing to enter
The principal issue in this case is whether the plaintiff has demonstrated that he is adversely affected by the regulation. “Standing requires no more than a colorable claim of injury . . . .” Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981). We conclude that on the basis of the facts presented, the plaintiff has standing to bring a declaratory judgment action because, pursuant to Practice Book § 390 (a) and (b), he is adversely affected by the regulation. The fact that the plaintiff owns property that can be subdivided, which is clearly within the purview of the zoning regulation, coupled with the plaintiffs general attack on the legislative enactment of the regulation, based primarily on constitutional vagueness grounds, and the language of Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745, suggesting that a declaratory judgment action was the proper vehicle to raise his constitutional challenge to the regulation in question, constitutes sufficient aggrievement for the plaintiff to seek declaratory relief.
The defendant in this case asserts that the allegations of the plaintiffs complaint are insufficient to support his claim for relief and argues that our decision in ASL Associates v. Zoning Commission, 18 Conn. App. 542, 599 A.2d 536 (1989), controls the outcome of the present case. Believing that ASL Associates was analogous to the present case, the trial court relied on that decision in concluding that there was no actual controversy between the parties. We conclude, however, that ASL Associates v. Zoning Commission, supra, 542, is not dispositive of the present appeal.
The prerequisite determination of whether there is a substantial controversy or a sufficient uncertainty of legal relations that requires settlement between the parties must be made in the light of the particular circumstances involved in each case. Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951). “The complaint must state facts sufficient to set forth a cause of action entitling the plaintiff to a declaratory judgment. 1 Anderson, Declaratory Judgments (2d Ed.) § 257. To state a cause of action for such relief, facts showing the existence of a substantial controversy or uncertainty of legal relations which requires settlement between the parties must be alleged. Ordinarily, there should be an assertion in the pleadings by one party of a legal relation or status or right in which he has a definite interest, together with an assertion of the denial of it by the other party, thus setting forth a substantial dispute. Id., § 258.” Lipson v. Bennett, supra, 148 Conn. 389. “Unless, therefore, the complaint recites facts
In the present case, we agree with the commission’s assertion that the plaintiffs complaint fails to allege that he has been adversely affected as an owner of property that can be subdivided. The complaint does not allege that the disputed regulation prohibits the plaintiff from subdividing his property nor does the complaint allege that the plaintiff ever intends to file a subdivision application. The omission of an essential allegation in a complaint, however, is not necessarily a fatal deficiency where that deficiency should have been raised before trial, and the trial is conducted as though the allegation were present. Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990).
“The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect. Gargan v. Harris, 90 Conn. 188, 191, 96 A. 940 (1916). . . . Our rules of practice are designed to have all formal and technical objections made known as early as practicable, so that the plaintiff may amend or proceed anew, and the parties may, as expeditiously and inexpensively as possible, reach and settle their controversy upon its merits. Donaghue v. Gaffy, 53 Conn. 43, 52 (1885). The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under
The defendant commission was not prejudiced by the plaintiffs failure to allege in his complaint that the disputed regulation caused the plaintiff to be uncertain as to his rights as an owner of potentially subdividable property. The plaintiff attempted to litigate the same issue in the previous action, and the Supreme Court stated that the plaintiffs in that case “should have brought a declaratory judgment action” to challenge “the facial invalidity of the regulation.” Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745-46. Upon review of the entire record, including the testimonial evidence, it is clear that the crux of the plaintiffs claim is that he has been adversely affected because of that uncertainty. Unlike our conclusion in ASL Associates v. Zoning Commission, supra, 18 Conn. App. 542, which was before us pursuant to stipulation of the parties, in the present case we conclude that there was sufficient testimony before the trial court to evidence the plaintiffs uncertainty as to his rights as an owner of property that has the potential for subdivision.
The trial court found that the plaintiff was unable to allege or prove any adverse impact on his property from the adoption of the regulation because “[h]e has not applied to subdivide the property nor has he expressed any intention ever to do so.” The fact that the plaintiff has not applied to subdivide his property is not determinative of whether the plaintiff has been adversely affected by the adoption of the regulation. Here, the plaintiff argues that he has been adversely affected by the adoption of the regulation because it is unconstitutionally vague and ambiguous. As a result, the plaintiff claims that he is uncertain whether he is able to subdivide his property in accordance with the provisions of
We note that title 22a of the General Statutes, entitled “Environmental Protection,” confers standing on private persons to bring actions to protect the environment. Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975). Any member of the general public can initiate an independent declaratory judgment action under General Statutes § 22a-16
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The disputed amendment that was adopted by the defendant planning and zoning commission of the town of Trumbull provides as follows: “Land with existing slopes of more than 25 per cent, or areas which have been designated as inland wetlands, or areas lying within a 100-year flood plain mapped by the Federal Flood Insurance Administration is environmentally sensitive land, and shall be excluded from the minimum lot size or acreage requirements set forth on the schedule in Article III of the Zoning Regulations, to the extent that such environmentally sensitive land exceeds 50 per cent of such parcel.”
General Statutes § 52-29 (a) provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”
Practice Book § 390 provides: “—Conditions
“The court will not render declaratory judgments upon the complaint of any person:
“(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
“(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
“(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
“(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”
The trial court in Bombero v. Planning & Zoning Commission, supra, 218 Conn. 740, concluded that the plaintiff and others were aggrieved by the passage of the regulation because they owned undeveloped parcels of land in the town that were large enough to be subdivided and that each
General Statutes § 22a-16 provides: “The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford-New Britain, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, anyperson, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”
General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof,