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KATHLEEN JACQUES v. COMMISSIONER OF
ENERGY AND ENVIRONMENTAL
PROTECTION ET AL.
(AC 42609)
Lavine, Suarez and Devlin, Js.*
Syllabus
The plaintiff property owner sought a permanent injunction against the
defendants, the Commissioner of Energy and Environmental Protection
and the Secretary of the Office of Policy and Management, prohibiting
them from taking further action in the redevelopment of a state park
and for an order precluding them from denying her alleged statutory
(§ 22a-16) right to intervene in public hearings related to the redevelop-
ment project. The plaintiff filed a complaint with the Department of
Energy and Environmental Protection, seeking to intervene in the public
hearings on the project pursuant to the applicable statute (§ 22a-19) and
to have the opportunity to present expert witnesses on her behalf in
opposition to the conclusions of the environmental impact evaluation,
as well as seeking to cross-examine the department’s witnesses and
provide rebuttal expert testimony. The department denied that there
was a proceeding in which the plaintiff could intervene. The plaintiff
brought an administrative appeal, in which she claimed, inter alia, that
the redevelopment plan would have irreversible environmental impacts
on the area and, because her property was close to the park, the redevel-
opment would affect her special personal or legal interests. The trial
court subsequently dismissed the action on the ground of sovereign
immunity. Held:
1. The plaintiff could not prevail on her claim that the trial court erred in
determining that she failed to allege facts sufficient to establish her
statutory standing under § 22a-16, as her complaint failed to articulate
a colorable claim of unreasonable pollution, impairment, or destruction
of the environment; the complaint contained only two causes of action,
alleging that each defendant violated § 22a-16, and the complaint’s focus
was entirely on how the plaintiff’s rights were violated when the depart-
ment denied her petition for intervention, and alleged a procedural
violation without alleging facts that, if proven, would support a finding
that this violation would unreasonably pollute, impair, or destroy the
environment.
2. The trial court applied the proper rule of law when it construed the factual
allegations in the complaint; contrary to the plaintiff’s claim, the court
did not state that the complaint failed to make out a ‘‘prima facie case,’’
as opposed to a colorable claim, instead, the court used ‘‘prima facie’’
as a descriptive phrase that captured the type of allegation required to
defeat sovereign immunity and to articulate that, at first glance, the
complaint did not allege facts that, when viewed in the light most favor-
able to the plaintiff, were sufficient to satisfy exceptions to sovereign
immunity.
3. The trial court did not err in determining that the allegations of the
complaint did not come within the exception to sovereign immunity for
state actions alleged in violation of constitutional rights, as the public
hearing in which the plaintiff sought to intervene was not a ‘‘proceeding’’
under § 22a-19, as that statute did not provide for intervention in the
type of hearing at issue in the present case, it was within the department’s
discretion to reject the plaintiff’s petition, and, even if the department
wrongfully denied her petition, this action would not constitute a viola-
tion of the plaintiff’s constitutional rights because § 22a-19 did not create
a constitutional right of intervention; moreover, the plaintiff did not
specifically allege that her constitutional rights had been violated and the
plaintiff’s claims in her complaint were not of a constitutional magnitude
alleging a violation of a fundamental right.
4. The plaintiff could not prevail on her claim that the trial court erred in
holding that the allegations of her complaint did not come within the
exception to sovereign immunity for a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of a state officer’s
statutory authority: although her complaint alleged that the defendants
improperly denied her petition for intervention in contravention of § 22a-
19 and that they did so for an illegal purpose, the department had the
authority to deny the plaintiff’s petition for intervention on the ground
that the public hearing was not a ‘‘proceeding’’ to which § 22a-19 applied,
as § 22a-19 solely covers matters that are adversarial in nature, thus,
the facts in the complaint did not support the claim that either of the
defendants acted in excess of his statutory authority; moreover, the
illegal purpose exception required the plaintiff to plead that the defen-
dants’ conduct was in excess of their statutory authority, regardless of
whether she was required to allege that the defendants’ conduct pro-
moted an illegal purpose, and the plaintiff’s claim still failed because
the defendants did not act in excess of their statutory authority.
5. This court declined to reach the merits of the plaintiff’s claim that the
trial court erred when it ruled that the scoping process/review of the
environmental impact evaluation was not a proceeding for purposes of
intervention under § 22a-19, as the trial court did not address this issue
when it dismissed the action, and, instead, based its decision on its
determination that the doctrine of sovereign immunity barred the plain-
tiff’s claim for relief: this court will not consider a claim that the trial
court, in reaching its decision, did not address; moreover, even if this
court reached the merits of the this claim, it would fail as this court
concluded that the hearing in which the plaintiff sought to intervene
was not a proceeding for purposes of § 22a-19.
Argued October 13, 2020—officially released March 30, 2021
Procedural History
Action seeking, inter alia, a permanent injunction
preventing the defendants from further implementing
a master plan to redevelop a certain state park, and for
other relief, brought to the Superior Court in the judicial
district of New London, where the trial court, S. Mur-
phy, J., granted the defendants’ motion to dismiss and
rendered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Richard S. Cody, with whom, on the brief, was
Michael P. Carey, for the appellant (plaintiff).
Lori D. DiBella, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellees (defendants).
Opinion
SUAREZ, J. The plaintiff, Kathleen Jacques, brought
the action underlying this appeal against the defen-
dants, Robert Klee, the Commissioner of Energy and
Environmental Protection (commissioner), and Benja-
min Barnes, Secretary of the Office of Policy and Man-
agement (secretary). The plaintiff sought, inter alia, a
permanent injunction prohibiting the defendants from
taking further action with respect to a plan to redevelop
Seaside State Park in Waterford and an order precluding
the defendants from ‘‘further denying . . . her statu-
tory rights’’ to intervene in public hearings related to
the redevelopment project. The plaintiff appeals from
the judgment of the trial court granting the defendants’
motion to dismiss on the ground of sovereign immunity
and concluding that she failed to demonstrate that an
exception to sovereign immunity applied. On appeal,
the plaintiff claims that the court (1) erred in determin-
ing that she failed to allege facts sufficient to establish
her statutory standing under General Statutes § 22a-
16, (2) utilized an improper standard in construing the
complaint’s allegations under the sovereign immunity
exceptions for state actions in violation of the plaintiff’s
constitutional rights and for state actions in excess of
its authority, (3) erred when it concluded that the allega-
tions of the complaint did not come within the excep-
tion to sovereign immunity for state actions alleged in
violation of constitutional rights, (4) erred when it held
that the allegations of the complaint did not come within
the exception to sovereign immunity for a substantial
allegation of wrongful conduct to promote an illegal
purpose in excess of a state officer’s statutory authority,
and (5) erred when it ruled that the scoping process/
review of the environmental impact evaluation was not
a ‘‘proceeding’’ for purposes of intervention under Gen-
eral Statutes § 22a-19.1 We affirm the judgment of the
trial court.
The following procedural history is relevant to this
appeal. The plaintiff commenced the underlying action
on July 12, 2018. The two count complaint sought a
permanent injunction prohibiting the Department of
Energy and Environmental Protection (department)
from further implementing its master plan to redevelop
Seaside State Park, a thirty-two acre, state owned prop-
erty in Waterford, and to enjoin the defendants ‘‘from
further denying the plaintiff her statutory rights’’ under
§ 22a-19. Specifically, she challenged ‘‘the record of
decision, opinion, findings of fact, and determination
of environmental impact concerning the Seaside State
Park Master Plan, prepared by [the department] and
submitted to the . . . Office of Policy and Management
on January 9, 2018, which [the Office of Policy and
Management] subsequently reviewed and favorably
determined on or about March 2, 2018 pursuant to statu-
tory requirement . . . .’’
The plaintiff alleged in her complaint that Seaside
State Park is located on Long Island Sound and contains
a number of buildings, including two former residences
located approximately 300 feet and 550 feet from her
home, respectively. She further alleged that the depart-
ment intended to implement a ‘‘destination park con-
cept’’ as its preferred alternative, which would involve
the ‘‘restoration and reuse of existing historic buildings
onsite for lodging and enhancement of the waterfront
for ecological and recreational purposes . . . .’’ The
plaintiff included in the complaint passages from the
master plan that allegedly stated that ‘‘the buildings
designated for lodging . . . would support up to
approximately 63 rooms with associated services such
as dining areas, conference space, a pool, fitness center
and parking. . . . [I]f developers deem that 63 rooms
are not sufficient to make the project economically
viable, then [the department] will entertain proposals
for up to 100 rooms of lodging.’’
The plaintiff alleged that the department looked at
the potential environmental impacts of the proposed
redevelopment and prepared an environmental impact
evaluation with its findings.2 At its discretion, the
department scheduled a public hearing on the environ-
mental impact evaluation to be held on July 31, 2017.
3
The plaintiff further alleged that on July 25, 2017, she
filed with the department a verified complaint seeking
to intervene in this public hearing pursuant to § 22a-
19. In her complaint, she stated that by intervening,
she expected to have the opportunity ‘‘to provide for
evidentiary purposes the live testimony of one or more
expert witnesses on her behalf in opposition to the
findings, recommendations, conclusions and opinions
in the [environmental impact evaluation] which came
before the public hearing, and the right, as a party,
to cross-examine [the department’s] witnesses and to
provide rebuttal expert testimony.’’
The plaintiff next alleged that on July 31, 2017, prior
to the scheduled public hearing, the department
e-mailed her a letter from the agency legal director
denying that there was a ‘‘proceeding’’ in which she
could intervene, and indicating that, ‘‘[l]ike all members
of the public, [she] is afforded the opportunity to make
comments on the [environmental impact evaluation].’’
The plaintiff stated in her complaint that, because she
was prevented from participating as a party intervenor
in the July 31, 2017 hearing, she was ‘‘unable to cross-
examine [the department’s] witnesses and/or to present
her own experts.’’
The plaintiff further alleged that on January 9, 2018,
pursuant to General Statutes § 22a-1e,4 the department
submitted the environmental impact evaluation and a
record of its decision on the proposed action to the
Office of Policy and Management for approval. She fur-
ther alleged that on March 2, 2018, the secretary wrote
a letter to the commissioner in which he concluded
that the environmental impact evaluation satisfied the
requirements of the Connecticut Environmental Protec-
tion Act of 1971 (act), General Statutes § 22a-14 et seq.
The plaintiff’s complaint alleged potential environ-
mental impacts cited by the department in its environ-
mental impact evaluation and alleged that, ‘‘[a]ccording
to the [environmental impact evaluation], some of the
. . . impacts [would] be irreversible.’’ She alleged that
‘‘[n]oise resulting from lodging and related increased
uses of the Seaside property . . . would be easily audi-
ble from [her] property, and from within her house-
hold.’’ Therefore, she alleged, the department’s pro-
posed action would ‘‘specially and injuriously affect the
special personal or legal interests of [the plaintiff].’’ In
count one, the plaintiff alleged that the commissioner
violated her rights as an intervenor under § 22a-19 when
the department denied her petition for intervention and
subsequently forwarded the environmental impact eval-
uation and record of decision to the Office of Policy
and Management. In count two, the plaintiff alleged
that the secretary violated her rights under § 22a-19
when he issued a finding that the environmental impact
evaluation satisfied the requirements of the act, despite
the department’s alleged violation of her rights as a
would be intervenor.
On September 6, 2018, the defendants moved to dis-
miss the plaintiff’s cause of action in its entirety, pursu-
ant to Practice Book § 10-30, on the ground that the
court lacked subject matter jurisdiction on the basis of
sovereign immunity. The plaintiff filed a memorandum
of law in opposition to the motion to dismiss in which
she relied on each of the following three exceptions to
the doctrine of sovereign immunity. First, she argued
that the legislature waived the state’s sovereign immu-
nity for her to challenge the department’s environmen-
tal impact evaluation process when it enacted the act.
Second, she argued that the allegations of the complaint
demonstrated that she ‘‘had a colorable claim to a con-
stitutional due process property interest in interven-
tion.’’ Third, she argued that the department acted in
excess of its authority and in derogation of its duties
under the act, specifically § 22a-19, when it denied her
verified petition for intervention. Additionally, she
argued that the environmental impact evaluation and
scoping projects were ‘‘proceedings’’ for the purposes
of § 22a-19, and, therefore, the department’s decision
to reject her petition ‘‘was legally incorrect and beyond
[its] authority to make.’’
The defendants filed a reply in which they argued
that the plaintiff failed to allege facts in her complaint
sufficient to satisfy any of the three exceptions to sover-
eign immunity. They also contended that the public
hearing on the environmental impact evaluation was
not a ‘‘proceeding’’ for the purposes of intervention.
The court held a hearing on the motion to dismiss
on October 22, 2018, during which the court ordered
supplemental briefing. The parties submitted supple-
mental briefs on October 26, 2018.
The court granted the defendants’ motion to dismiss
and rendered judgment dismissing the action on Decem-
ber 17, 2018. The court issued a memorandum of deci-
sion on the same date. In its memorandum of decision,
the court concluded, pursuant to the doctrine of sover-
eign immunity, that the plaintiff lacked standing. First,
the court concluded that the allegations of ‘‘the plain-
tiff’s complaint [fell] short of articulating a colorable
claim of unreasonable pollution, impairment or destruc-
tion of the environment’’ as required by General Statutes
§ 22a-16 and, thus, ‘‘failed to establish statutory stand-
ing . . . .’’ (Internal quotation marks omitted.) Second,
the court concluded that the allegations of the com-
plaint ‘‘failed to establish standing by way of the excep-
tion to sovereign immunity where the plaintiff’s consti-
tutional rights have been violated.’’ The court stated
that there was ‘‘no mention of a constitutional violation
anywhere in the complaint, nor [were] there any facts
upon which the court [could] infer a constitutional vio-
lation.’’ Third, the court concluded that the plaintiff’s
complaint ‘‘[failed] to allege facts showing prima facie
that . . . any state officer committed wrongful con-
duct to promote an illegal purpose in excess of his or
her statutory authority.’’ Further, the court concluded
that ‘‘the plaintiff’s first and second causes of action
[contained] nothing more than conclusory allegations
concerning the defendants’ conduct.’’ The plaintiff filed
a motion to reargue the motion to dismiss on January
7, 2019, which the court denied on January 28, 2019.
The plaintiff filed the present appeal on February 19,
2019. Additional procedural history will be set forth as
necessary.
I
The plaintiff first claims that the court erred in
determining that she failed to allege facts sufficient to
establish her statutory standing under § 22a-16.5 We
disagree.
Our standard of review is well established. ‘‘A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . . When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
it must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided on that alone.
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo review.
. . . In so doing, we must decide whether [the trial
court’s] conclusions are legally and logically correct
and find support in the facts that appear in the record.
. . . The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . Not only have we recognized
the state’s immunity as an entity, but [w]e have also
recognized that because the state can act only through
its officers and agents, a suit against a state officer
concerning a matter in which the officer represents the
state is, in effect, against the state.’’ (Citations omitted;
internal quotation marks omitted.) Stotler v. Dept. of
Transportation, 142 Conn. App. 826, 833–34, 70 A.3d
114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014).
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions . . . . The
first exception . . . occurs when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity; the second
exception occurs when an action seeks declaratory or
injunctive relief on the basis of a substantial claim that
the state or one of its officers has violated the plaintiff’s
constitutional rights; and the third exception occurs
when an action seeks declaratory or injunctive relief
on the basis of a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of the
officer’s statutory authority.’’ (Citation omitted; internal
quotation marks omitted.) Jezouit v. Malloy, 193 Conn.
App. 576, 594–95, 219 A.3d 933 (2019). We will apply
this same standard of review to parts II, III, and IV of
this opinion, as these sections address the plaintiff’s
challenge to the court’s granting of the defendant’s
motion to dismiss on the grounds of sovereign immu-
nity.
As the court stated in its memorandum of decision,
§ 22a-16 ‘‘waives sovereign immunity as to actions for
declaratory or equitable relief against the state and its
agencies ‘for the protection of the public trust in the
air, water and other natural resources of the state from
unreasonable pollution, impairment or destruction.’ ’’
(Emphasis in original.) ‘‘It is settled that the existence
of statutory standing depends on whether the interest
sought to be protected by the [plaintiff] is arguably
within the zone of interests to be protected or regulated
by the statute . . . . Under § 22a-16, standing . . . is
conferred only to protect the natural resources of the
state from pollution or destruction. . . . Accordingly,
all that is required to invoke the jurisdiction of the
Superior Court under § 22a-16 is a colorable claim, by
any person [or entity] against any person [or entity], of
conduct resulting in harm to one or more of the natural
resources of this state. . . . Although it is true, of
course, that the plaintiff need not prove its case at [the
pleading] stage of the proceedings . . . the plaintiff
nevertheless must articulate a colorable claim of unrea-
sonable pollution, impairment or destruction of the
environment.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Fort Trumbull Con-
servancy, LLC v. New London, 265 Conn. 423, 432, 829
A.2d 801 (2003).
We note that the plaintiff did not cite § 22a-16 in her
complaint and, instead, referenced only the act as a
whole. The court, nevertheless, addressed the statutory
exception claim under § 22a-16.6 We will, therefore,
review the facts alleged in the complaint to determine if
the plaintiff made out a colorable claim under § 22a-16.
In its memorandum of decision, the court relied on
Fort Trumbull Conservancy, LLC v. New London,
supra, 265 Conn. 428, a case in which a conservation
organization brought an action under § 22a-16 seeking
to bar the implementation of a municipal development
plan based on alleged violations of federal, state, and
local law. The organization’s appeal to our Supreme
Court focused on allegations in the complaint ‘‘(1) that
the defendants failed to follow certain procedural
requirements in adopting the development plan; and (2)
that the plan called for demolition without consider-
ation of ‘feasible and prudent alternatives.’ ’’ Id., 431.
In concluding that the organization failed to establish
statutory standing under § 22a-16, our Supreme Court
stated that ‘‘the allegations of the complaint do not
give rise to an inference of unreasonable harm to the
environment because it is not evident how the defen-
dants’ failure to follow certain procedural requirements
in adopting the development plan or to consider alterna-
tives to the demolition of buildings in the Fort Trumbull
area is likely to cause such harm.’’ Id., 433. The court
noted: ‘‘The complaint . . . expressly challenges both
the legality of the process pursuant to which the defen-
dants adopted the development plan and the necessity
of the demolition component of the plan. These allega-
tions, however, provide no indication as to how or why
the adoption and implementation of the development
plan is likely to cause unreasonable harm to the environ-
ment.’’ Id., 432. Our Supreme Court concluded that the
plaintiff had not articulated a colorable claim of unrea-
sonable pollution, impairment, or destruction of the
environment. Id., 433. Therefore, under Fort Trumbull
Conservancy, LLC, when a party seeks to intervene in
a proceeding based on allegations that the department
did not follow the act’s procedural requirements, it must
also allege in the complaint how the alleged procedural
violations could result in unreasonable harm to the
environment. See id., 432.
In the present case, the plaintiff argues that Burton
v. Commissioner of Environmental Protection, 291
Conn. 789, 970 A.2d 640 (2009) (Burton I),7 controls,
and that the court erred in relying on Fort Trumbull
Conservancy, LLC. In Burton I, the plaintiff, Nancy
Burton, moved to intervene, pursuant to § 22a-19, in the
department’s permit renewal proceeding for an electric
generating facility powered by two nuclear power gen-
erating units. Id., 793–94. The hearing officer allowed
Burton to intervene for the purpose of raising some of
the claims set forth in her motion for intervention, but
excluded her claims concerning the department’s
alleged collusion with the facility operator and past
illegal activities, as well as the potential impact of radio-
active waste from the facility. Id., 795. Burton brought
an action in Superior Court, alleging in her complaint,
among other things, that the hearing officer had a con-
flict of interest and was biased. Id., 796. She further
alleged that the department had prejudged her permit
renewal application and had declined to consider the
environmental impact of the facility’s discharge water.
Id. The complaint also contained allegations pertaining
to how the facility’s operations would pollute the sur-
rounding waters and harm marine life. Id. The defen-
dants moved to dismiss the action, and the trial court
granted the motion, concluding that, ‘‘because the con-
duct that [Burton] alleged in her complaint arose out
of a permitting proceeding, [she] lacked standing.’’ Id.,
797. Burton appealed.
On appeal, the defendants in Burton I argued that
Burton lacked standing under § 22a-16 because her
claims were premised entirely on flaws in the permitting
process. Id., 805. In reversing the judgment of the trial
court, our Supreme Court stated that the complaint
contained specific allegations of harm to the environ-
ment, and specifically alleged that the existing permit
renewal proceeding was inadequate to protect the rights
recognized by the act because the hearing officer was
biased and the department had prejudged the matter.
Id., 804–805. The court reasoned that, ‘‘[i]n essence,
therefore, [Burton] [alleged] that, if the hearing officer
and the department had fairly and impartially con-
ducted the permit renewal proceeding, they would not
have allowed [the facility owner] to continue [the facili-
ty’s] operations under the emergency authorization or
issued the tentative decision to renew the discharge
permit because the impact of the operations on the
marine life in the neighboring bodies of water is more
harmful than that permitted by the applicable regulatory
scheme.’’ Id., 805. Thus, although Burton’s claims were
premised on flaws in agency process, the complaint
sufficiently alleged facts that would support a finding
that the flawed process could potentially cause harm
to the environment. See id., 807 (‘‘we have recognized
that the mere fact that conduct comes within the scope
of a statutory permitting scheme does not preclude a
claim under the act if, as in the present case, the plaintiff
makes a colorable claim that the conduct will cause
unreasonable pollution’’).
In the present case, the complaint alleges one cause
of action against the commissioner and one cause of
action against the secretary. These causes of action
allege only that each defendant violated § 22a-19, and
focus entirely on how the plaintiff’s rights were violated
when the department denied her petition for interven-
tion. The complaint merely restates findings contained
in the environmental impact evaluation and it fails to
articulate a colorable claim of unreasonable pollution,
impairment or destruction of the environment. As in
Fort Trumbull Conservancy, LLC, the complaint
alleges a procedural violation without alleging facts
that, if proven, would support a finding that this viola-
tion would unreasonably pollute, impair, or destroy the
environment. We will not speculate as to how the defen-
dants’ alleged wrongdoing confers standing on the
plaintiff under § 22a-16. See Mystic Marinelife Aquar-
ium, Inc. v. Gill, 175 Conn. 483, 502, 400 A.2d 726 (1978)
(‘‘No pleading [in this case] . . . alleges any specific
conduct as to what is claimed to constitute any alleged
unreasonable pollution, impairment or obstruction of
any natural resource. We cannot supply such an omis-
sion.’’). Accordingly, we conclude that the court did not
err in determining that the allegations in the plaintiff’s
complaint did not make out a colorable claim under
§ 22a-16.
II
The plaintiff next claims that the court utilized an
improper standard in construing the complaint’s allega-
tions under the sovereign immunity exceptions for state
actions in violation of the plaintiff’s constitutional rights
and state actions in excess of its authority. We disagree.
In its memorandum of decision granting the defen-
dants’ motion to dismiss, the trial court set forth the
following standard: ‘‘A motion to dismiss shall be used
to assert lack of jurisdiction over subject matter. Prac-
tice Book § 10-30 (a) (1). A motion to dismiss tests
whether, based on the record, the court has jurisdiction.
MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79
A.3d 60 (2013). ‘When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
it must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader.’ . . . Stroud v. Mid-Town Tire & Sup-
ply, Inc., 146 Conn. App. 806, 811–12, 81 A.3d 243 (2013).
In their motion, the defendants asserted sovereign
immunity as the ground for the court’s lack of subject
matter jurisdiction. The doctrine of sovereign immunity
implicates subject matter jurisdiction and, thus, is
grounds for granting a motion to dismiss. Housatonic
Railroad Co. v. Commissioner of Revenue Services, 301
Conn. 268, 274, 21 A.3d 759 (2011). Sovereign immunity
applies to the state and the state’s officers. See Daiml-
erChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d
675 (2007).’’
In addition to our standard of review articulated in
part I of this opinion, we note that ‘‘[t]he construction
of a judgment is a question of law for the court, such
that our review of the [plaintiff’s] claim is plenary. As
a general rule, judgments are to be construed in the
same fashion as other written instruments. . . . The
determinative factor is the intention of the court as
gathered from all parts of the judgment.’’ (Internal quo-
tation marks omitted.) In re Jason B., 137 Conn. App.
408, 414, 48 A.3d 676 (2012).
The trial court construed the allegations of the plain-
tiff’s complaint in light of the facts alleged with regard
to the environmental impact evaluation and the defen-
dants’ conduct in approving the Seaside State Park mas-
ter plan. In discussing the second and third exceptions
to sovereign immunity,8 the court stated: ‘‘The com-
plaint fails to allege facts showing prima facie that
the state or any of its officers violated the plaintiff’s
constitutional rights or that any state officer committed
wrongful conduct to promote an illegal purpose in
excess of his or her statutory authority.’’ (Emphasis
added.)
The plaintiff takes issue with the court’s use of the
term ‘‘prima facie,’’ arguing that the court required the
allegations of the complaint to make out a ‘‘prima facie
case,’’ rather than a colorable claim, as required by
Burton I. She further argues that ‘‘a prima facie showing
is an evidential matter,’’ which ‘‘can involve the estab-
lishment of a legally required rebuttable presumption
or a party’s production of enough evidence to allow the
fact-trier to infer the fact at issue and rule in the party’s
favor.’’ She cites the Black’s Law Dictionary definition
of ‘‘prima facie case’’ to support this argument.
When used as an adverb, Black’s Law Dictionary
defines ‘‘prima facie’’ as: ‘‘At first sight; on first appear-
ance but subject to further evidence or information.’’
Black’s Law Dictionary (11th Ed. 2019) p. 1441. When
used as an adjective, Black’s Law Dictionary defines
the term as: ‘‘Sufficient to establish a fact or raise a
presumption unless disproved or rebutted; based on
what seems to be true on first examination, even though
it may later be proved to be untrue.’’ (Emphasis added.)
Id. Our Supreme Court similarly has described ‘‘prima
facie evidence’’ as ‘‘evidence which, if credited, is suffi-
cient to establish the fact or facts which it is adduced
to prove.’’ (Emphasis added; internal quotation marks
omitted.) Rapuano v. Oder, 181 Conn. 515, 520, 436
A.2d 21 (1980). Phrases such as ‘‘prima facie’’ and ‘‘suffi-
cient’’ do not describe standards that are qualitatively
different from the phrase ‘‘substantial allegation,’’
which is used in cases such as Jezouit v. Malloy, supra,
193 Conn. App. 595.
In the present case, the court did not state that the
complaint failed to make out a ‘‘prima facie case.’’
Instead, the court used ‘‘prima facie’’ as a descriptive
phrase that captures the type of allegation required to
defeat sovereign immunity. In other words, the court
used ‘‘prima facie’’ to articulate that, at first glance,
the complaint did not allege facts that, when viewed in
the light most favorable to the plaintiff, were sufficient
to satisfy the second and third exceptions to sovereign
immunity. Accordingly, on the basis of our construction
of the court’s decision, we conclude that the court
applied the proper rule of law when it construed the
factual allegations in the complaint according to the
standard it articulated earlier in the decision.
III
Next, the plaintiff claims that the court erred when
it concluded that the allegations of the complaint did
not come within the exception to sovereign immunity
for state actions alleged in violation of constitutional
rights. We disagree.
We begin by noting that, in her complaint, the plaintiff
did not specifically allege that her constitutional rights
had been violated. The court concluded in its memoran-
dum of decision granting the defendants’ motion to
dismiss that the complaint did not allege ‘‘facts upon
which the court [could] infer a constitutional violation.’’
After a careful review of the complaint, we conclude
that the plaintiff’s claims are not of constitutional mag-
nitude alleging the violation of a fundamental right.
This court has noted that ‘‘[t]he procedural right
involved in administrative proceedings properly is
described as a right to fundamental fairness, as distin-
guished from the due process rights implicated in judi-
cial proceedings.’’ Burton v. Connecticut Siting Coun-
cil, 161 Conn. App. 329, 341 n.12, 127 A.3d 1066 (2015),
cert. denied, 320 Conn. 925, 133 A.3d 459 (2016); see
also Megin v. Zoning Board of Appeals, 106 Conn. App.
602, 607 n.6, 942 A.2d 511 (‘‘The right to fundamental
fairness in administrative proceedings encompasses a
variety of procedural protections, including the right to
adequate notice. . . . [Our Supreme Court at times
has] characterized these procedural protections as due
process rights. . . . Although the due process charac-
terization, at first blush, suggests a constitutional
source, there is no discussion in these cases of a prop-
erty interest in terms of constitutional due process
rights. These decisions are, instead, based on a line of
administrative law cases and reflect the development,
in Connecticut, of a common-law right to due process
in administrative hearings.’’ (Citation omitted; internal
quotation marks omitted.)), cert. denied, 289 Conn. 901,
957 A.2d 871 (2008). Additionally, we note that the
United States Court of Appeals for the Second Circuit
has held that the right to intervene under § 22a-19 is
not a protected property interest under the federal con-
stitution. West Farms Associates v. State Traffic Com-
mission, 951 F.2d 469, 472 (2d Cir. 1991).9
On appeal, the plaintiff argues that § 22a-19 creates
a right of intervention, and that the department had no
legal discretion but to grant her petition for interven-
tion. She contends that, in enacting this statute, the
legislature conferred upon intervening citizens due pro-
cess rights, which vest when citizens file verified peti-
tions for intervention with the department. To support
this assertion, she cites Polymer Resources, Ltd. v.
Keeney, 32 Conn. App. 340, 348–49, 629 A.2d 447 (1993),
which states: ‘‘As we have noted, § 22a-19 (a) compels
a trial court to permit intervention in an administrative
proceeding or judicial review of such a proceeding by
a party seeking to raise environmental issues upon the
filing of a verified complaint. The statute is therefore
not discretionary.’’ We note that in Zoning Commission
v. Fairfield Resource Management, Inc., 41 Conn. App.
89, 104–105, 674 A.2d 1335 (1996), this court concluded
that the decision in Polymer Resources, Ltd., was not
legally viable because in its companion case, Polymer
Resources, Ltd. v. Keeney, 227 Conn. 545, 630 A.2d 1304
(1993), our Supreme Court remanded the case to the
trial court with direction to render judgment dismissing
the complaint. Thus, the case was not persuasive
authority when this court rendered its decision. Zoning
Commission v. Fairfield Resource Management, Inc.,
supra, 104. Accordingly, the plaintiff’s reliance on this
case is misplaced.
In the present case, for the reasons set forth in part IV
of this opinion, the public hearing in which the plaintiff
sought to intervene was not a ‘‘proceeding’’ under § 22a-
19. Therefore, because the statute does not provide for
intervention in the type of hearing at issue in the present
case, it was within the department’s discretion to reject
the plaintiff’s petition. Furthermore, even if the depart-
ment wrongfully denied her petition, this action would
not constitute a violation of the plaintiff’s constitutional
rights because § 22a-19 does not create a constitutional
right of intervention. Accordingly, we conclude that the
court did not err in determining that the allegations of
the complaint did not come within the exception to
sovereign immunity for alleged violations of constitu-
tional rights.
IV
The plaintiff next claims that the court erred when
it held that the allegations of the complaint did not
come within the exception to sovereign immunity for
a substantial allegation of wrongful conduct to promote
an illegal purpose in excess of a state officer’s statutory
authority. In this regard, she argues that the complaint
alleged that the defendants improperly denied her peti-
tion for intervention in contravention of § 22a-19 and
that they did so for an illegal purpose. We disagree.
‘‘For a claim under the third exception [regarding
illegal purpose], the [plaintiff] must do more than allege
that the defendants’ conduct was in excess of their
statutory authority; [she] also must allege or otherwise
establish facts that reasonably support those allega-
tions. . . . In the absence of a proper factual basis
in the complaint to support the applicability of these
exceptions, the granting of a motion to dismiss on sover-
eign immunity grounds is proper.’’ (Citation omitted;
internal quotation marks omitted.) DaimlerChrysler
Corp. v. Law, supra, 284 Conn. 721.
To determine, as the plaintiff argues, whether the
defendants acted wrongfully in denying her petition for
intervention, it is first necessary to determine whether
the public hearing in which the plaintiff sought to inter-
vene was a ‘‘proceeding’’ for the purposes of § 22a-19a.
For the reasons we set forth herein, we conclude that
the public hearing was not a ‘‘proceeding’’ to which the
statute applied. Thus, the department had the authority
to deny the plaintiff’s petition for intervention on this
ground.
‘‘When a case presents only questions of law, an
administrative agency’s legal determinations are not
entitled to any special deference, unless they previously
have been subject to judicial review or to a governmen-
tal agency’s time-tested interpretation. . . . Because
statutory interpretation is a question of law, our review
is de novo.’’ (Citations omitted; internal quotation
marks omitted.) Planning & Zoning Commission v.
Freedom of Information Commission, 316 Conn. 1, 9,
110 A.3d 419 (2015).
General Statutes § 22a-1d governs review of environ-
mental impact evaluations and provides in relevant part:
‘‘The sponsoring agency preparing an environmental
impact evaluation shall hold a public hearing on the
evaluation if twenty-five persons or an association hav-
ing not less than twenty-five persons requests such a
hearing within ten days of the publication of the notice
in the Environmental Monitor.’’ Pursuant to § 22a-1a-9
of the Regulations of Connecticut State Agencies, if
twenty-five persons do not request a public hearing,
the department may still hold one ‘‘at its discretion.’’
This regulation requires the department to publish
notice of the availability of environmental impact evalu-
ations that includes information about the public com-
ment period. Regs., Conn. State Agencies § 22a-1a-9 (a)
(4). If there is no public hearing planned, the department
must keep the public comment period open for at least
forty-five days after the date that it publishes the notice.
Id. If the department holds a public hearing, the depart-
ment must keep the public comment period open for
at least five days after the public hearing, or for at least
forty-five days after the publication date of the notice,
whichever is later. Id.
Section 22a-19 (a) (1) provides: ‘‘In any administra-
tive, licensing or other proceeding, and in any judicial
review thereof made available by law, the Attorney Gen-
eral, any political subdivision of the state, any instru-
mentality or agency of the state or of a political subdivi-
sion thereof, any person, partnership, corporation,
association, organization or other legal entity may inter-
vene 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 reason-
ably 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.’’
In Zoning Commission v. Fairfield Resources Man-
agement, Inc., supra, 41 Conn. App. 89, this court
applied principles of statutory construction to deter-
mine whether an association of property owners and
other individuals could utilize § 22a-19 to intervene in
an enforcement action brought by a town zoning com-
mission in Superior Court. This court held that the par-
ties should have been granted intervenor status because
the enforcement action fell within the ‘‘other proceed-
ing’’ category of the statute. Id., 97–98. It stated that
‘‘the words ‘administrative’ and ‘licensing’ as used in
§ 22a-19 (a) are directed to agency proceedings.’’ Id.,
115. The court then concluded that ‘‘[i]f ‘other proceed-
ings’ is to be given meaning in § 22a-19 (a), it can refer
only to court proceedings . . . .’’ (Emphasis added.) Id.
In the present case, the public hearing on the environ-
mental impact evaluation was not a licensing proceed-
ing, nor was it a court proceeding that would fall under
the ‘‘other proceedings’’ category of § 22a-19. Therefore,
we must determine whether the department’s public
hearing on the environmental impact evaluation consti-
tuted an ‘‘administrative proceeding’’ under the statute.
Neither the act nor the Uniform Administrative Proce-
dure Act, General Statutes § 4-166 et seq., defines the
terms ‘‘proceeding’’ or ‘‘administrative proceeding.’’ In
their supplemental briefs on the defendants’ motion to
dismiss, both parties acknowledged that Connecticut
courts have yet to define the word ‘‘proceeding’’ in the
context of § 22a-19. Thus, we must interpret the term
‘‘proceeding’’ as it is used in the statute.
We begin by setting forth the guiding principles of
statutory interpretation. General Statutes § 1-2z pro-
vides: ‘‘The meaning of a statute shall, in the first
instance, be ascertained from the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ ‘‘The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) State v. Brown, 310 Conn.
693, 702, 80 A.3d 878 (2013).
‘‘In the absence of a definition of terms in the statute
itself, [w]e may presume . . . that the legislature
intended [a word] to have its ordinary meaning in the
English language, as gleaned from the context of its
use. . . . Under such circumstances, it is appropriate
to look to the common understanding of the term as
expressed in a dictionary.’’ (Internal quotation marks
omitted.) Efstathiadis v. Holder, 317 Conn. 482, 488,
119 A.3d 522 (2015).
Merriam-Webster’s Collegiate Dictionary defines
‘‘proceeding’’ as a ‘‘legal action. . . .’’ Merriam-Web-
ster’s Collegiate Dictionary (11th Ed. 2003) p. 990.
Black’s Law Dictionary provides more detail, defining
a ‘‘proceeding’’ as: ‘‘1. The regular and orderly progres-
sion of a lawsuit, including all acts and events between
the time of commencement and the entry of judgment.
2. Any procedural means for seeking redress from a
tribunal or agency. 3. An act or step that is part of a
larger action. 4. The business conducted by a court or
other official body; a hearing. 5. Bankruptcy. A particu-
lar dispute or matter arising within a pending case—as
opposed to the case as a whole.’’ Black’s Law Dictionary
(11th Ed. 2019) p. 1457. It also defines ‘‘administrative
proceeding’’ as: ‘‘A hearing, inquiry, investigation, or
trial before an administrative agency, [usually] adjudi-
catory in nature but sometimes quasi-legislative.’’ Id., p.
56. Each of these definitions reveals that ‘‘proceeding’’
refers to a matter that takes place in court as part of
a lawsuit or criminal case, or an adversarial10 matter
before an administrative body.11
Section 1-2z next directs us to look at the relationship
between § 22a-19 and other statutes. The term ‘‘pro-
ceeding’’ is only used in one other section of the act.
General Statutes § 22a-18, which discusses the powers
of reviewing courts, mentions the term in two instances.
Subsection (b) of § 22a-18 provides in relevant part: ‘‘If
administrative, licensing or other such proceedings are
required or available to determine the legality of the
defendant’s conduct, the court in its discretion may
remand the parties to such proceedings. . . .’’ Subsec-
tion (d) of § 22a-18 provides: ‘‘Where, as to any adminis-
trative, licensing or other proceeding, judicial review
thereof is available, the court originally taking jurisdic-
tion shall maintain jurisdiction for purposes of judicial
review.’’ When read alongside the portion of the subsec-
tion (b) of § 22a-18 that states ‘‘to determine the legality
of the defendant’s conduct,’’ the term ‘‘administrative
proceeding’’ appears to reference proceedings before
an agency that are adjudicatory in nature.
The General Statutes define ‘‘proceeding’’ in the Busi-
ness Corporation Act, General Statutes § 33-600 et seq.,
and the Revised Nonstock Corporation Act, General
Statutes § 33-1000 et seq., both of which provide: ‘‘ ‘Pro-
ceeding’ includes civil suit and criminal, administrative
and investigatory action.’’ General Statutes § 33-602
(27); General Statutes § 33-1002 (25). Additionally, our
Penal Code defines an ‘‘official proceeding’’ as ‘‘any
proceeding held or which may be held before any legis-
lative, judicial, administrative or other agency or official
authorized to take evidence under oath, including any
referee, hearing examiner, commissioner or notary or
other person taking evidence in connection with any
proceeding.’’ General Statutes § 53a-146 (1).
Our analysis leads us to conclude that the term ‘‘pro-
ceeding,’’ as it is used in § 22a-19, solely covers matters
that are adversarial in nature. The dictionary definitions
of the term, as well as its use in other statutes, demon-
strate that a proceeding is something that takes place
before a tribunal or decision maker, with a resulting
decision that is based on principles of law, statutes,
or agency regulations. Moreover, it involves basic due
process rights such as a right for interested parties to
be heard, present evidence, and to argue on their behalf.
Furthermore, the legal concept of intervention inher-
ently relates to participation in an adjudicatory proceed-
ing. See, e.g., Black’s Law Dictionary (11th Ed. 2019)
p. 983 (‘‘Intervention’’ is defined as: ‘‘1. The entry into
a lawsuit by a third party who, despite not being named
a party to the action, has a personal stake in the out-
come. . . . The intervenor sometimes joins the plain-
tiff in claiming what is sought, sometimes joins the
defendant in resisting what is sought, and sometimes
takes a position adverse to both the plaintiff and the
defendant. . . . 2. The legal procedure by which such
a third party is allowed to become a party to the litiga-
tion. . . .’’). Without intervention, parties would not
otherwise have the opportunity to be heard. In a public
hearing, on the other hand, there is no need to intervene
because an agency’s purpose in holding one is specifi-
cally to gather input from members of the public.
Here, the department was not mandated by statute
to hold a hearing, but did so at its discretion to solicit
public comment. Even if it did not hold this hearing,
the plaintiff would have had the opportunity to submit
written comments to the department.12 The plaintiff,
however, alleged in her complaint that by filing a veri-
fied pleading for intervention under § 22a-19, she
expected ‘‘to provide for [evidentiary] purposes the live
testimony of one or more expert witnesses on her behalf
in opposition to the findings, recommendations, conclu-
sion and opinions in the [environmental impact evalua-
tion] which came before the public hearing, and the
right, as a party, to cross-examine [the department’s]
witnesses and to provide rebuttal expert testimony.’’
These procedures are characteristics of an adversarial
process, rather than an agency-led hearing to solicit
public comment.
The plaintiff cites Keeney v. Fairfield Resources, Inc.,
41 Conn. App. 120, 674 A.2d 1349 (1996), in support of
her claim that the department itself has adopted an
expansive interpretation of ‘‘proceeding’’ under § 22a-
19. In that case, however, the plaintiffs sought to inter-
vene in an enforcement action brought by a zoning
commission in the Superior Court. Id., 121. The claim
involved conduct by the defendants that allegedly vio-
lated a condition of a permit issued by the department,
along with actions taken by the defendants without
obtaining the required permits from the department.
Id., 122. Not only does Keeney involve a matter entirely
different from a public hearing, it is also a companion
case to Zoning Commission v. Fairfield Resources
Management, Inc., supra, 41 Conn. App. 115, which
limited the meaning of ‘‘other proceedings’’ to court
proceedings. Thus, Keeney has no bearing on nonadju-
dicatory matters conducted by the department outside
of court.
Moreover, the plaintiff does not point to any case in
which a Connecticut court has permitted intervention
in a hearing similar to the one at issue here. Interpreting
the statute in the way the plaintiff requests would yield
unworkable results by giving members of the public the
right to turn public hearings into trial like proceedings,
which would impose additional procedures beyond
those required by the act and the department’s regula-
tions.
In light of our analysis, we conclude that the depart-
ment had the authority to deny the plaintiff’s petition
for intervention on the ground that the public hearing
was not covered by § 22a-19 because it was not a ‘‘pro-
ceeding.’’ Accordingly, the facts alleged in the complaint
do not support the claim that either defendant acted
in excess of his statutory authority.
In her brief to this court, the plaintiff also argues that
the trial court improperly relied on its conclusion that
the plaintiff did not adequately plead that the defen-
dants acted with an illegal purpose. She attempts to
demonstrate that because her complaint sought equita-
ble relief, and not money damages, she did not need to
prove the ‘‘illegal purpose’’ prong of this exception to
sovereign immunity. The illegal purpose exception
nonetheless requires a plaintiff to plead that the defen-
dants’ conduct was in excess of their statutory author-
ity, regardless of whether she was required to allege that
the defendants’ conduct promoted an illegal purpose.
Thus, even if the plaintiff’s argument were correct, her
claim would still fail because we already have con-
cluded that the defendants did not act in excess of their
statutory authority. Therefore, the plaintiff’s claim fails.
V
Finally, the plaintiff claims that the court ‘‘erred when
it ruled that the scoping process/review of the [environ-
mental impact evaluation] was not a ‘proceeding’ for
purposes of intervention under § 22a-19 . . . .’’ We
decline to reach the merits of this claim.
As the defendants note, the court did not address
this issue when it dismissed the action. Instead, the
court based its decision on its determination that the
doctrine of sovereign immunity barred the plaintiff’s
claim for relief. We will not consider a claim that the
court, in reaching its decision, did not address. See,
e.g., State v. Carrasquillo, 191 Conn. App. 665, 692–93,
216 A.3d 782 (court unable to review ruling that does
not exist), cert. denied, 333 Conn. 930, 218 A.3d 69
(2019); Lane v. Cashman, 179 Conn. App. 394, 416, 180
A.3d 13 (2018) (court declined to review defendants’
claim about ruling that trial court did not make). Fur-
thermore, even if we reached the merits of this claim,
it would fail for the reasons set forth in part IV of this
opinion, in which we concluded that the hearing in
which the plaintiff sought to intervene was not a pro-
ceeding for purposes of § 22a-19.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
For convenience, we have reordered the plaintiff’s claims as they are
set forth in her brief so that we first address the claims related to sover-
eign immunity.
2
General Statutes § 22a-1b governs evaluations by state agencies of
actions affecting the environment. Subsection (b) details the public scoping
process that the department was required to follow before it prepared of
the environmental impact evaluation. Section 22a-1b (b) (1) provides: ‘‘Each
sponsoring agency shall, prior to a decision to prepare an environmental
impact evaluation pursuant to subsection (c) of this section for an action
which may significantly affect the environment, conduct an early public
scoping process.’’ An agency must initiate the early public scoping process
in accordance with § 22a-1b (b) (2).
Section 22a-1b (b) (3) provides in relevant part that members of the public
‘‘may submit comments on the nature and extent of any environmental
impacts of the proposed action’’ for the thirty days following the agency’s
publication of the notice of the early public scoping process. Section 22a-
1b (b) (4) provides in relevant part: ‘‘A public scoping meeting shall be held
at the discretion of the sponsoring agency or if twenty-five persons or
an association having not less than twenty-five persons requests such a
meeting . . . .’’
After the agency identifies the environmental impacts of its proposed
action through the scoping process, it must prepare an environmental impact
evaluation in accordance with the requirements of § 22a-1b (c). General
Statutes § 22a-1d (a) requires that the agency make the environmental impact
evaluation available for public inspection and comment. As we note in
footnote 3 of this opinion, the agency may be required to hold a public
hearing on the environmental impact evaluation or do so at its discretion
in order to solicit additional public comment.
3
General Statutes § 22a-1d (a) provides in relevant part that an agency
‘‘shall hold a public hearing on the [environmental impact] evaluation if
twenty-five persons or an association having not less than twenty-five per-
sons requests such a hearing . . . .’’ If an agency does not receive such a
request, the agency ‘‘may hold, at its discretion, a public hearing on an
environmental impact evaluation no less than thirty (30) days after the
publication of the notice of availability. . . . If a public hearing is held, the
public comment period shall remain open for at least five (5) days following
the close of the public hearing or until the date specified in the notice of
availability of the environmental impact evaluation published in the Environ-
mental Monitor, whichever is later.’’ (Emphasis added.) Regs., Conn. State
Agencies § 22a-1a-9 (c).
In an affidavit submitted to the court in support of the defendants’ motion
to dismiss, Thomas Tyler, Director of the State Parks Division of the Bureau
of Outdoor Recreation within the department, stated that the department
‘‘did not receive the requisite petition by twenty-five or more people (or
from an organization containing twenty-five members or more) pursuant to
. . . § 22a-1d while conducting the [environmental impact evaluation] for
Seaside State Park. Consequently, [the department] was not required to hold
the nonadjudicative, informational public hearing for the Seaside [environ-
mental impact evaluation] on July 31, 2017 at the Waterford Town Hall, but
[the department] did so anyway based on public interest.’’
4
General Statutes § 22a-1e provides: ‘‘The Office of Policy and Manage-
ment shall review all environmental impact evaluations together with the
comments and responses thereon, and shall make a written determination
as to whether such evaluation satisfies the requirements of this part and
regulations adopted pursuant thereto, which determination shall be made
public and forwarded to the agency, department or institution preparing
such evaluation. Such determination may require the revision of any evalua-
tion found to be inadequate. Any member of the Office of Policy and Manage-
ment which has prepared an evaluation and submitted it for review shall
not participate in the decision of the office on such evaluation. The sponsor-
ing agency shall take into account all public and agency comments when
making its final decision on the proposed action.’’
5
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, associa-
tion, 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, for declaratory and
equitable relief against the state, any political subdivision thereof, any instru-
mentality or agency of the state or of a political subdivision thereof, any
person, 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.’’
6
In its memorandum of decision on the defendants’ motion to dismiss,
the court stated: ‘‘Although the plaintiff does not specifically cite § 22a-16
standing alone, the plaintiff does reference the Connecticut Environmental
Protection Act at §§ 22a-14 through 22a-20 in claiming standing. . . . Read
broadly, this paragraph, albeit a stretch, could be construed as an assertion
of a claim under § 22a-16, wherefore this court will address the statutory
waiver exception.’’ We agree with the court’s interpretation of the plaintiff’s
complaint as seeking relief under § 22a-16.
7
In addition to Burton I, our Supreme Court has decided two other Burton
matters. See Burton v. Dept. of Environmental Protection, Conn. ,
A.3d (2021) (Burton III); Burton v. Commissioner of Environmental
Protection, 323 Conn. 668, 150 A.3d 666 (2016) (Burton II). The plaintiff
relies only on Burton I in her appellate brief.
We note that our Supreme Court recently decided Burton III, in which
it briefly discusses a plaintiff’s rights under § 22a-19. In Burton III, supra,
Conn. , Burton argued, among other things, that ‘‘the administrative
[licensing] proceeding was inadequate because the hearing officer precluded
certain claims on which she sought to intervene.’’ Although Burton III
addressed the department’s discretion under § 22a-19, this discussion does
not impact our analysis in the present case. First, in Burton III, Burton
intervened in a licensing proceeding, which, for the reasons set forth in part
IV of this opinion, is distinguishable from the purported public hearing at
issue in the present case. Second, in Burton III, the court focused on the
hearing officer’s discretion to preclude certain claims after Burton already
had intervened in the department’s proceeding. The present case, on the
other hand, concerns whether the department has the discretion to preclude
someone from intervening at all.
8
To reiterate, ‘‘the second exception [to sovereign immunity] occurs when
an action seeks declaratory or injunctive relief on the basis of a substantial
claim that the state or one of its officers has violated the plaintiff’s constitu-
tional rights; and the third exception occurs when an action seeks declara-
tory or injunctive relief on the basis of a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of the officer’s statutory
authority.’’ (Internal quotation marks omitted.) Jezouit v. Malloy, supra, 193
Conn. App. 595.
9
‘‘Federal case law, particularly decisions of the United States Court of
Appeals for the Second Circuit . . . can be persuasive in the absence of
state appellate authority . . . .’’ Designs for Health, Inc. v. Miller, 187 Conn.
App. 1, 11 n.8, 201 A.3d 1125 (2019). In her appellate brief, the plaintiff
does not cite legal authority for the proposition that § 22a-19 creates a
constitutional right of intervention in proceedings by the department. We
are unaware of any state appellate authority addressing whether such a
right exists. The decision of the Second Circuit Court of Appeals is, therefore,
instructive.
10
In State v. Anonymous, 30 Conn. Supp. 302, 304–307, 312 A.2d 715
(1973), the Superior Court determined that the issuance of a bench warrant
was not a ‘‘proceeding’’ within the meaning of General Statutes § 54-41l,
Connecticut’s wiretap statute. In reaching this determination, the court cited
federal cases in which courts concluded that under a similar federal wiretap
statute, the word ‘‘proceeding’’ was limited to ‘‘adversary-type hearings.’’
Id., 305. We find this case to be persuasive in addition to our textual analysis.
11
Black’s Law Dictionary includes the term ‘‘hearing’’ in both of its defini-
tions, which suggests that public hearings on environmental impact evalua-
tions could fall under the umbrella of ‘‘proceedings.’’ However, when read
within the context of the definitions as a whole, it is apparent that ‘‘hearing’’
references a single event that is part of a larger legal action against a
particular defendant, such as a hearing on a motion, rather than a public
hearing to solicit comments on a proposed agency action.
12
In fact, the plaintiff participated in the statutory environmental impact
evaluation review process in multiple ways. In the affidavit referenced in
footnote 2 of this opinion, Tyler attested that the plaintiff made ‘‘seven
submissions of written or oral comments that were received into the [envi-
ronmental impact evaluation] record and considered by the agency.’’ He
further attested that the department included in the record and considered
the statements contained in the plaintiff’s pleading for intervention.