Fort Trumbull Conservancy, LLC v. Alves

The issue to be resolved in this
appeal is whether the plaintiff, Fort Trumbull Conservancy,
LLC, has standing under General Statutes § 22a-
161 to bring an action against the defendants to enjoin
the demolition of thirty-nine buildings. The defendants
are the New London Development Corporation (corporation),
Antonio H. Alves, the New London building
official, and the city of New London (city). The trial
court, Hon. D. Michael Hurley, judge trial referee,
granted the defendants' motions to dismiss the complaint
for lack of subject matter jurisdiction and rendered
judgment thereon. The plaintiff appealed from
that judgment to the Appellate Court and we then transferred
the appeal to this court pursuant to Practice
Book § 65-1 and General Statutes § 51-199 (c). Weaffirm
the judgment of the trial court in part and reverse in part.

The trial court reasonably could have found the following
relevant facts. The corporation, a nonprofit private
development corporation, applied to Alves for
demolition permits to destroy thirty-nine buildings
owned by it in the city. As the city building official,
Alves was authorized to administer the state demolition
code, General Statutes §§ 29-406 through 29-413.2 Some
of the buildings for which demolition permits had been
sought were eligible for listing on the National Register
of Historic Places, and none of the defendants had
declared the buildings to be blighted, deteriorated or
deserving of condemnation by virtue of their unfitness
for human habitation.The trial court reasonably could have found the following
relevant facts. The corporation, a nonprofit private
development corporation, applied to Alves for
demolition permits to destroy thirty-nine buildings
owned by it in the city. As the city building official,
Alves was authorized to administer the state demolition
code, General Statutes §§ 29-406 through 29-413.2 Some
of the buildings for which demolition permits had been
sought were eligible for listing on the National Register
of Historic Places, and none of the defendants had
declared the buildings to be blighted, deteriorated or
deserving of condemnation by virtue of their unfitness
for human habitation.

The plaintiff, a limited liability corporation formed
by residents of the city, instituted an action pursuant
to § 22a-16 seeking a variety of declaratory judgments,
temporary and permanent injunctions, damages, costs
and equitable relief. The effect of the relief sought by the
plaintiff would be to enjoin the issuance of demolition
permits for the buildings in question and to enjoin the
defendants from taking action to further the demolition
process. The plaintiff alleged that demolishing the build-
ings in question would result in a wide variety of environmental
harms, including the consumption of energy
that would contribute to widespread terrain disruption,
air pollution and water contamination. The plaintiff
alleged, for example, that the demolition would have
an adverse environmental impact at oil facilities in Louisiana,
Alaska and Venezuela, coal mines in Wyoming
and Pennsylvania, and cement, steel and bulldozer factories.
The plaintiff also alleged that the demolition
would waste raw materials, burden solid waste disposal
facilities in Connecticut and elsewhere and require
expenditure of energy to transport the solid waste
materials.

The defendants filed motions to dismiss the plaintiff's
complaint, claiming that the plaintiff lacked standing
under the Connecticut Environmental Protection Act
(act), General Statutes § 22a-14 et seq., and that the
plaintiff was not otherwise classically or statutorily
aggrieved. Specifically, the defendants argued that,
because Alves and the city had no statutory authority
to consider environmental issues in determining
whether to issue the demolition permits, the plaintiff
was not aggrieved by the issuance of the permits. The
trial court granted the motions and this appeal followed.

The plaintiff claims on appeal that the trial court
improperly concluded that the plaintiff did not have
standing under § 22a-16 to pursue its claim. The plaintiff
further claims that: (1) regardless of whether it has
standing under § 22a-16, it has standing to bring an
action against the defendants under General Statutes
§ 7-148 (c) (8);3 and (2) the dismissal of its action violated
the public trust doctrine.4 We conclude that the
plaintiff had standing to bring its action under § 22a-
16.5 We also conclude, however, that the plaintiff has
failed to allege sufficiently a cause of action against
Alves. To the extent that its claims against the city are
derivative of the claims against Alves, those claims also
legally are insufficient. Accordingly, we conclude that
the granting of the motion to dismiss as to those claims,
although improper, was harmless, because the claims
properly would have been subject to a motion to strike.
The plaintiff has raised claims against the city that are
not derivative of its claim against Alves, however, and
against the corporation, that would withstand a motion
to strike. Accordingly, the granting of the motions to
dismiss was improper as to those claims.

As a preliminary matter, we address the appropriate
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.)
Ramos v. Vernon, 254 Conn. 799, 808, 761 A.2d 705
(2000). ‘‘A determination regarding a trial court's subject
matter jurisdiction is a question of law. When . . .
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions
are legally and logically correct and find support in the
facts that appear in the record.'' (Internal quotation
marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717
A.2d 706 (1998).

‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy presented
by the action before it. . . . [A] court lacks discretion
to consider the merits of a case over which it
is without jurisdiction . . . . The objection of want of
jurisdiction may be made at any time . . . [a]nd the
court or tribunal may act on its own motion, and should
do so when the lack of jurisdiction is called to its attention.
. . . The requirement of subject matter jurisdiction
cannot be waived by any party and can be raised
at any stage in the proceedings.'' (Citations omitted;
internal quotation marks omitted.) Lewis v. Gaming
Policy Board, 224 Conn. 693, 698–99, 620 A.2d 780
(1993).

‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substantive
rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a ‘personal stake in the outcome of the
controversy' . . . provides the requisite assurance of
‘concrete adverseness' and diligent advocacy.'' (Citations
omitted.) Maloney v. Pac, 183 Conn. 313, 320–21,
439 A.2d 349 (1981). ‘‘The requirement of directness
between the injuries claimed by the plaintiff and the
conduct of the defendant also is expressed, in our standing
jurisprudence, by the focus on whether the plaintiff
is the proper party to assert the claim at issue.'' Ganim
v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d
98 (2001).

‘‘Two broad yet distinct categories of aggrievement
exist, classical and statutory. . . . Classical
aggrievement requires a two part showing. First, a party
must demonstrate a specific, personal and legal interest
in the subject matter of the decision, as opposed to a
general interest that all members of the community
share. . . . Second, the party must also show that the
agency's decision has specially and injuriously affected
that specific personal or legal interest. . . .
Aggrievement does not demand certainty, only the possibility
of an adverse effect on a legally protected interest.
. . .

‘‘Statutory aggrievement exists by legislative fiat, not
by judicial analysis of the particular facts of the case.
In other words, in cases of statutory aggrievement, par-
ticular legislation grants standing to those who claim
injury to an interest protected by that legislation.''
(Internal quotation marks omitted.) Terese B. v. Commissioner
of Children & Families, 68 Conn. App. 223,
228, 789 A.2d 1114 (2002).

To provide context for our analysis of the claim that
the plaintiff has no standing under § 22a-16 to bring an
action against Alves and the city, we begin our analysis
with a review of our case law governing the scope and
nature of the standing conferred by that statute.6 In
Belford v. New Haven, 170 Conn. 46, 47, 364 A.2d 194
(1975), one of our early cases addressing this issue, the
plaintiffs sought to enjoin the city of New Haven and
its mayor from leasing portions of a public park to a
private entity for purposes of constructing a rowing
course. The trial court concluded that the plaintiffs
lacked standing because they had not proved any claim
under the act, and the plaintiffs appealed. Id. On appeal,
we held that, under § 22a-16, ‘‘standing . . . is conferred
only to protect the natural resources of the state
from pollution or destruction. . . . The act does not,
as the plaintiffs urge, confer standing upon individuals
to challenge legislative decisions of a municipality
which do not directly threaten the public trust in the
air, water and other natural resources of this state.''
(Citation omitted.) Id., 54. We then noted that, at trial,
the plaintiffs had not proved ‘‘any claim under the . . .
[a]ct . . . .'' Id., 55. Accordingly, we affirmed the judgment
of the trial court that the plaintiffs did not have
standing. Id.

In Manchester Environmental Coalition v. Stockton,
184 Conn. 51, 53–55, 441 A.2d 68 (1981), the plaintiffs,
two individuals,7 brought a challenge under the act
against the approval of a plan for an industrial park by
the defendant commissioner of commerce. The plaintiffs
claimed that ‘‘ ‘unreasonable pollution, impairment
or destruction' '' of the air would result from the automobile
traffic that would be generated by the expected
employment at the industrial park. Id., 56–57. On appeal,
we reviewed the trial court's ruling that, under § 22a-
16, ‘‘the plaintiffs' standing and their burden of proof
at the trial comprise one and the same thing.'' Id., 57.
We concluded that ‘‘[t]hat is not the case. Standing is
automatically granted under the [act] to ‘any person.'
The plaintiffs need not prove any pollution, impairment
or destruction of the environment in order to have
standing.'' (Emphasis added.) Id. Accordingly, we overruled
Belford to the extent that it was inconsistent with
that conclusion. Id., 57 n.7.

Thus, in Manchester Environmental Coalition, we
recognized that, contrary to our implicit holding in Belford,
standing to bring a claim under § 22a-16 does not
depend on proving a violation of that statute at trial.
Rather, we implicitly concluded that a mere colorable
claim by any person of ‘‘ ‘unreasonable pollution,
impairment or destruction' '' of the environment was
sufficient to establish standing under the act.8 Id., 57.

We next considered the scope of the standing conferred
by § 22a-16 in Middletown v. Hartford Electric
Light Co., 192 Conn. 591, 473 A.2d 787 (1984). In Middletown,
the plaintiffs, the city of Middletown and its zoning
enforcement officer, sought to enjoin the
defendants, the Hartford Electric Light Company and
its parent company, Northeast Utilities, from burning
mineral oil containing polychlorinated biphenyls
(PCBs). Id., 593. The trial court dismissed seven of the
eight counts of the plaintiffs' complaint and found for
the defendants on the remaining count. Id. With respect
to the four counts in which the plaintiffs had sought to
enjoin the defendants from burning the fuel because
they had failed to obtain a variety of required permits
from the department of environmental protection, the
trial court concluded that the plaintiffs were neither
classically aggrieved by that failure nor statutorily
aggrieved under the act. Id., 595–97. The plaintiffs
appealed to this court.

Reviewing the plaintiffs' claim under the licensing
statutes, we noted that, in our then recent case of Connecticut
Fund for the Environment, Inc. v. Stamford,
192 Conn. 247, 470 A.2d 1214 (1984), we had held that
‘‘[General Statutes] § 22a-19 of the [act], which permits
any person, on the filing of a verified pleading, to intervene
in any administrative proceeding and to raise
therein environmental issues ‘must be read in connection
with the legislation which defines the authority of
the particular administrative agency. Section 22a-19 is
not intended to expand the jurisdictional authority of
an administrative body whenever an intervenor raises
environmental issues. Thus, an inland wetland agency
is limited to considering only environmental matters
which impact on inland wetlands. Other environmental
impacts must be raised before other appropriate administrative
bodies, if any, or in their absence by the institution
of an independent action pursuant to § 22a-16.' Id.,
250–51.'' Middletown v. Hartford Electric Light Co.,
supra, 192 Conn. 597. We concluded that ‘‘[t]hese same
principles apply to bar the city's standing under the
licensing statutes. The trial court was therefore correct
in concluding that § 22a-16 did not provide the plaintiffs
with standing under any statute other than the [act]
itself.'' Id.

Thus, in Middletown, we, in effect, interpreted our
holding in Connecticut Fund for the Environment, Inc.,
that § 22a-19 did not expand the jurisdiction of administrative
agencies to include consideration of environmental
matters that they were not authorized to
consider under their enabling statutes to mean that
§ 22a-16 did not expand the original jurisdiction of the
Superior Court to include consideration of statutory
claims that were within the primary jurisdiction of a
particular state agency. Accordingly, we concluded that
the plaintiffs did not have standing to challenge the
defendants' failure to obtain the permits and licenses
required by a variety of licensing statutes, because that
matter was within the pervasive regulatory powers of
the department of environmental protection. Middletown
v. Hartford Electric Light Co., supra, 192 Conn.
596.

We also concluded, however, that § 22a-16 did confer
standing on the plaintiffs to bring count five of their
complaint, which had been brought directly under the
act. Id., 597 and n.2. In that count, they had alleged
that the burning of the contaminated mineral oil was
‘‘reasonably likely to result in the unreasonable pollution,
the impairment of and the destruction of the public
trust in the air, water resources and other natural
resources within the City.'' (Internal quotation marks
omitted.) Id., 600. We noted that, although the trial
court also had concluded that the plaintiffs had standing
under the act to bring count five, it had dismissed the
count on grounds of federal preemption. Id. The trial
court further had found, however, that, as a general
matter, the ‘‘evidence failed to establish that ‘any ascertainable
amount of pollutants will be produced as a
result of the proposed burning program of the [defendants].'
'' Id. On this record, we concluded that,
‘‘[w]hether or not we agree with the trial court's reasoning
on preemption, we can sustain its judgment on the
alternate ground of factual insufficiency.'' Id., 601.

We again considered the scope of standing under
§ 22a-16 in Fish Unlimited v. Northeast Utilities Service
Co., 254 Conn. 21, 755 A.2d 860 (2000). In that case,
the plaintiffs9 sought: (1) an injunction to prevent the
operation of Millstone Nuclear Power Station (Millstone);
and (2) a declaratory judgment that the discharge
permit issued to the defendants by the
department of environmental protection was invalid.
Id., 23. The plaintiffs alleged, inter alia, that ‘‘water
intakes and discharges at Millstone were causing unreasonable
pollution, impairment and destruction of the
air, water and other natural resources of the state within
the meaning of § 22a-16.'' Id., 28. The trial court concluded
that ‘‘the plaintiffs lacked standing under § 22a-
16 to bring this action directly in the Superior Court, and
that the plaintiffs failed to exhaust their administrative
remedies before the department.'' Id., 24. The plaintiffs
appealed. Id.

We began our analysis of the standing issue in Fish
Unlimited by recognizing that the act ‘‘waives the
aggrievement requirement in two circumstances. First,
any private party . . . without first having to establish
aggrievement, may seek injunctive relief in court ‘for
the protection of the public trust in the air, water and
other natural resources of the state from unreasonable
pollution, impairment or destruction . . . .' General
Statutes § 22a-16. Second, any person or other entity,
without first having to establish aggrievement, may
intervene in any administrative proceeding challenging
‘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.' General Statutes § 22a-
19 (a).'' Fish Unlimited v. Northeast Utilities Service
Co., supra, 254 Conn. 31. We concluded, however, that,
‘‘[a]lthough § 22a-16 abrogates the aggrievement
requirement for bringing an action directly in the Superior
Court''; id.; under Middletown v. Hartford Electric
Light Co., supra, 192 Conn. 595, and Connecticut Fund
for the Environment, Inc. v. Stamford, supra, 192 Conn.
247, ‘‘the plaintiffs must pursue their claim by intervening
in an administrative hearing before the department
pursuant to § 22a-19.'' Fish Unlimited v. Northeast Utilities
Service Co., supra, 31. ‘‘Only in the absence of an
appropriate administrative body may an independent
action pursuant to § 22a-16 be brought.'' Id., 32. Thus,
we interpreted Middletown to be grounded in the doctrine
of exhaustion of administrative remedies, under
which the Superior Court does not have initial subject
matter jurisdiction over a matter the initial resolution
of which has been committed by statute to an administrative
agency.

In Waterbury v. Washington, 260 Conn. 506, 800 A.2d
1102 (2002), we had occasion to revisit our holdings
in Middletown and Fish Unlimited. In that case, the
plaintiff city of Waterbury, brought an action seeking,
inter alia, a declaratory judgment that it had not unreasonably
polluted, impaired or destroyed the public trust
in the water, as provided in § 22a-16, in connection with
its use of water from the Shepaug River. Id., 511. The
defendants counterclaimed, alleging, inter alia, that the
plaintiff had violated the act. Id., 519. The trial court
found for the defendants on their counterclaim. Id., 524.
The plaintiff appealed, contending for the first time
on appeal that the trial court lacked subject matter
jurisdiction over the claim because the defendants had
failed to exhaust their administrative remedies under
the so-called minimum flow statutes, General Statutes
§§ 26-141a through 26-141c. Id., 525.

In our decision, we again interpreted Middletown
as being grounded in the doctrine of exhaustion of
administrative remedies. Id., 538–39. We determined,
however, on the basis of the plain language and legislative
history of the act - in particular, of General Statutes
§ 22a-18 (b),10 which allows the trial court to remand
an action to an administrative agency that has primary
jurisdiction over the environmental question - that
‘‘[the act] does not embody the exhaustion doctrine
as a subject matter jurisdictional limit on the court's
entertainment of an action under it.'' Id., 537. We concluded,
therefore, that the defendants were not required
to exhaust their remedies under the minimum flow stat-
utes before bringing suit under § 22a-16. Id., 545.
Accordingly, we overruled Middletown and Fish
Unlimited to the extent that they conflicted with that
conclusion. Id.

Finally, we note that, shortly before issuing our decision
in Waterbury, we had occasion to reconsider our
holding in Connecticut Fund for the Environment, Inc.
v. Stamford, supra, 192 Conn. 250, that § 22a-19 did
not confer standing to intervene in an administrative
proceeding when the agency had no jurisdiction to consider
environmental issues. See Nizzardo v. State Traffic
Commission, 259 Conn. 131, 153, 788 A.2d 1158
(2002). Although Nizzardo involved standing to intervene
in administrative proceedings under § 22a-19, and
not standing to bring an action under § 22a-16, Nizzardo
is relevant to this case because it involved the scope
of an administrative agency's jurisdiction under the act.
In Nizzardo, the plaintiff sought to intervene in proceedings
before the state traffic commission concerning
the application of the defendant First Stamford Corporation
for a certificate of operation for a proposed commercial
development pursuant to General Statutes § 14-
311. Id., 135–37. The plaintiff claimed that the application
‘‘concerned ‘an administrative proceeding which
involves conduct which is reasonably likely to have the
effect of unreasonably polluting, impairing or destroying
the public trust in the air, water, wildlife or other
natural resources of the State . . . .' '' Id., 137–38. The
commission denied the request to intervene; id., 138;
and, on the plaintiffs' appeal, the trial court affirmed
that decision. Id., 139. The plaintiff then appealed to
the Appellate Court, which affirmed the judgment of the
trial court. Id. We then granted certification to appeal.
Nizzardo v. State Traffic Commission, 252 Conn. 943,
747 A.2d 520 (2000).

On the plaintiff's appeal, we reaffirmed our holding
in Connecticut Fund for the Environment, Inc., as reiterated
in Middletown, that § 22a-19 was ‘‘ ‘not intended
to expand the jurisdictional authority of an administrative
body whenever an intervenor raises environmental
issues.' '' Nizzardo v. State Traffic Commission, supra,
259 Conn. 153, quoting Middletown v. Hartford Electric
Light Co., supra, 192 Conn. 596–97. In support of this
conclusion, we noted that ‘‘[i]f a party wants to raise
environmental concerns that are beyond the scope of
authority of a particular agency, [§ 22a-16] provides a
means for doing so.'' Nizzardo v. State Traffic Commission,
supra, 159. We also concluded that the state traffic
commission had no jurisdiction to consider environmental
issues. Id., 167. Accordingly, we concluded that
the plaintiff had no standing to intervene in the proceedings
before the commission. Id., 168.

With these principles in mind, we now turn to the
merits of the defendants' claim in this case that the
plaintiff had no standing to bring an action under § 22a-
16 because Alves and the city had no jurisdiction to
consider the environmental ramifications of issuing the
demolition permits. As we have noted, we previously
have recognized that, under § 22a-16, ‘‘any private party
. . . without first having to establish aggrievement,
may seek injunctive relief in court ‘for the protection
of the public trust in the air, water and other natural
resources of the state from unreasonable pollution,
impairment or destruction . . . .' '' Fish Unlimited v.
Northeast Utilities Service Co., supra, 254 Conn. 31,
overruled on other grounds, Waterbury v. Washington,
supra, 260 Conn. 545. This court hitherto has recognized
no restriction on the class of persons with standing to
seek relief under § 22a-16. See Manchester Environmental
Coalition v. Stockton, supra, 184 Conn. 57
(‘‘[s]tanding is automatically granted under the [act] to
‘any person' ''). The limitation on the scope of standing
to intervene in an administrative proceeding pursuant
to § 22a-19, first recognized by this court in Connecticut
Fund for the Environment, Inc., and reaffirmed in Nizzardo,
was grounded in our recognition that ‘‘[a]n
administrative agency, as a tribunal of limited jurisdiction,
must act strictly within its statutory authority'';
(internal quotation marks omitted) Nizzardo v. State
Traffic Commission, supra, 259 Conn. 156; and in our
conclusion that the act did not expand that authority
to include consideration of any and all environmental
matters raised by a would-be intervenor. There is, however,
no such a priori limitation on the authority of
the Superior Court. Accordingly, all that is required to
invoke the jurisdiction of the Superior Court under
§ 22a-16 is a colorable claim, by ‘‘any person'' against
‘‘any person,'' of conduct resulting in harm to one or
more of the natural resources of this state.

In this case, the plaintiff alleged in its complaint that
the issuance of the demolition permits by Alves
‘‘involves individual and cumulative conduct which has,
or which is reasonably likely to have, the effect of unreasonably
polluting, impairing, depleting or destroying
the public trust in the air, water, land or other natural
resources of the state . . . .'' In support of this legal
claim, the plaintiff alleged, inter alia, that ‘‘[t]he buildings,
structures and properties proposed for demolition,
the supply of available energy resources to be consumed
in the demolition process and the solid waste
demolition by-products are protectible resources within
the legislative policy and intent of [the act]'' and ‘‘[t]he
demolition of the buildings, structures and properties
and disposal of the debris will unnecessarily and wastefully
result in added and cumulative solid waste disposal
burdens on existing solid waste facilities [within the
state] and/or require expenditure of transportation
energy for disposal at out-of-state facilities.'' We conclude
that these allegations, although somewhat vague,
were sufficient to withstand a motion to dismiss for
lack of standing under the act. See Brookridge District
Assn. v. Planning & Zoning Commission, 259 Conn.
607, 611, 793 A.2d 215 (2002) (‘‘[i]n ruling upon whether
a complaint survives a motion to dismiss, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the allegations,
construing them in a manner most favorable
to the pleader'' [internal quotation marks omitted]); Doe
v. Yale University, 252 Conn. 641, 667, 748 A.2d 834
(2000) (‘‘pleadings must be construed broadly and realistically,
rather than narrowly and technically'' [internal
quotation marks omitted]). Accordingly, we conclude
that the trial court's granting of the defendants' motions
to dismiss was improper.

This does not end our analysis, however. Although
we conclude that the trial court improperly determined
that it had no subject matter jurisdiction over the plaintiff's
complaint, we also conclude that the factual allegations
of the complaint were insufficient to support the
plaintiff's claims for relief against Alves and its derivative
claims against the city. Accordingly, those claims
for relief properly were subject to a motion to strike.
See McCutcheon & Burr, Inc. v. Berman, 218 Conn.
512, 527, 590 A.2d 438 (1991) (concluding that ‘‘the trial
court should have treated the motion to dismiss as a
motion to strike'' and that court's failure to do so ‘‘does
not affect our decision'' that claim was legally invalid);
Middletown v. Hartford Electric Light Co., supra, 192
Conn. 600 (concluding that plaintiffs had standing under
§ 22a-16, but sustaining judgment for defendants on
alternate ground of factual insufficiency).

‘‘The purpose of a motion to strike is to contest . . .
the legal sufficiency of the allegations of any complaint
. . . to state a claim upon which relief can be granted.''
(Internal quotation marks omitted.) Faulkner v. United
Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293
(1997); see Practice Book § 10-39. ‘‘A motion to strike
challenges the legal sufficiency of a pleading, and, consequently,
requires no factual findings by the trial court.
. . . We take the facts to be those alleged in the complaint
. . . and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency.
. . . Thus, [i]f facts provable in the complaint would
support a cause of action, the motion to strike must be
denied.'' (Citations omitted; internal quotation marks
omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64–65,
793 A.2d 1048 (2002). ‘‘A motion to strike is properly
granted if the complaint alleges mere conclusions of law
that are unsupported by the facts alleged.'' Novametrix
Medical Systems, Inc. v. BOC Group, Inc., 224 Conn.
210, 215, 618 A.2d 25 (1992).

In its claim for relief against Alves and the city, the
plaintiff sought, inter alia, a declaratory judgment that:
(1) the demolition code is inadequate for the protection
of the public trust in the natural resources of the state;
(2) the demolition code is not exempt from compliance
with the act; (3) Alves does not have only a ministerial
duty to comply with the demolition code; and (4) Alves
and the city must consider feasible and prudent alternatives
to the demolition of the buildings in order to comply
with the act. In Nizzardo, however, we concluded
that the act did not expand the jurisdiction of administrative
agencies to include consideration of environmental
matters not otherwise within their jurisdiction.
Nizzardo v. State Traffic Commission, supra, 259
Conn. 155–56. As the plaintiff conceded in its complaint,
‘‘[n]either the [d]emolition [c]ode, city ordinances, nor
[the Building Official and Contracting Administrator's
Code] require [Alves] to consider feasible and prudent
alternatives or any other related analysis before issuance
of a demolition permit.'' Accordingly, to the extent
that the plaintiff seeks a declaratory judgment that
Alves should be required to consider the environmental
ramifications of demolition before issuing the demolition
permits, such relief cannot be granted consistent
with our holding in Nizzardo that administrative bodies
have no duty - indeed, no authority - under the act to
consider environmental matters not otherwise within
their jurisdiction.

That holding also disposes of the only remaining
request for relief against Alves, namely, the plaintiff's
claim for an injunction restraining the defendants from
‘‘taking any further action or proceedings for the demolition
of the buildings, structures and properties
described in the verified [c]omplaint . . . .'' As we have
noted, the plaintiff concedes that nothing in the demolition
code requires or authorizes the building official to
consider the environmental ramifications of the demolition
before issuing a permit. Rather, the issuance of the
demolition permits is contingent only upon the applicant's
providing written evidence that the applicant is
insured for demolition purposes, that utility connections
to the premises to be demolished have been severed,
and that the applicant holds a current valid
certificate of registration pursuant to General Statutes
§ 29-402. General Statutes § 29-406. In essence, the permit
merely constitutes a formal statement by the building
official that those requirements have been met. We
cannot perceive how the mere determination that certain
legal requirements - which have nothing whatsoever
to do with the protection of the natural resources
of the state - have been met could violate any duty
created by the act. Accordingly, we cannot conclude
that the act authorizes the issuance of an injunction
prohibiting Alves from proceeding with that determination.

We recognize that the issuance of the permits is
legally a condition antecedent to the demolition of the
buildings. We further note that there are any number of
legal and practical conditions antecedent to the alleged
polluting conduct in this case, including the obtaining
of demolition insurance, the severance of the utility
connections to the premises to be demolished and the
obtaining of a certificate of registration pursuant to
§ 29-402, all of which are prerequisites for the issuance
of the demolition permits. General Statutes § 29-406.
This court previously has recognized, however, that, in
the absence of any duty, the existence of a ‘‘but for''
relationship between the conduct of the defendant and
the harm suffered by the plaintiff does not suffice to
establish a cause of action. See Connecticut Mutual
Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265,
274–75 (1856) (recognizing that harm to plaintiffs was
‘‘distinctly traceable and solely due to the misconduct
of the defendants,'' but concluding that, despite ‘‘[t]he
completeness of the proof of connection between the
acts of the defendants and the loss of the plaintiffs,''
in absence of any duty to plaintiffs, plaintiffs did not
have standing to sue defendants). The same principle
applies when the plaintiff has failed to allege the violation
of a duty. Nothing in the act authorizes the issuance
of an injunction against lawful, nonpolluting conduct
merely because that conduct constitutes, as a practical
or legal matter, a condition antecedent to the alleged
harmful conduct of another person.11 Accordingly, we
conclude that the plaintiff has failed to state a claim
against Alves upon which relief can be granted. To
the extent that the plaintiff's claim against the city is
derivative of its claims against Alves, we conclude for
the same reasons that that claim must fail.12

We noted in McCutcheon & Burr, Inc. v. Berman,
supra, 218 Conn. 527–28, that ‘‘the primary difference
between the granting of a motion to dismiss for lack
of subject matter jurisdiction and the granting of a
motion to strike is that only in the latter case does the
plaintiff have the opportunity to amend its complaint.
See Practice Book § [10-44]. The ability to amend after
a motion to strike would be unavailing to the plaintiff
here, however, because the plaintiff was unable to demonstrate
that it could add anything to its complaint by
way of amendment that would avoid the deficiencies
in the original complaint. Therefore, although the defendants'
motion to dismiss was procedurally incorrect,
the resulting foreclosure of the plaintiff's ability to
amend was harmless.'' Likewise, in this case, we conclude
that there is nothing in the record to suggest that
the plaintiff could amend its complaint to allege a claim
for relief against Alves or against the city to the extent
that its claim against the city is derivative of its claim
against Alves.13 Accordingly, we conclude that, although
the granting of the motions to dismiss was improper,
the ruling was harmless as it related to those claims
because they properly were subject to a motion to
strike.

We note, however, that the plaintiff has alleged conduct
by the city that, if proven, could constitute a violation
of the act. Specifically, the plaintiff has alleged
that the city ‘‘has not and does not currently meet the
recycling and source reduction goals [for disposal of
solid waste] established in [General Statutes §] 22a-
220.''14 We express no opinion in this case as to the
scope of the city's responsibilities for disposal of the
demolition debris under § 22a-220 or whether proof of
a violation of that statute would establish a per se violation
of the act. We recognize, however, that this is
the type of claim that we determined in Waterbury v.
Washington, supra, 260 Conn. 575, to be within the
scope of the act. Accordingly, this claim improperly
was dismissed.15

We also conclude that the plaintiff sufficiently has
alleged a cause of action under the act against the
corporation on the ground that its demolition activities
will result in unreasonable harm to the natural
resources of the state. If the plaintiff can prove its claim
at trial, the trial court may order some form of injunctive
relief against the corporation regardless of whether the
demolition permits have been issued. Accordingly, the
claim against the corporation improperly was dismissed.

The dissent disagrees with these conclusions, however,
and criticizes the majority for engaging in what
it characterizes as an ‘‘unfair ‘ambuscade' '' of the plaintiff
by disposing of ‘‘the plaintiff's entire case - not just
this appeal - on a basis that has never been presented
at all in any court in this state.'' Moreover, it claims that
our reliance on McCutcheon & Burr, Inc., is misplaced
because that case ‘‘involved the exact opposite of what
the majority does here.'' Nevertheless, it would affirm
in part the trial court's granting of the defendants'
motions to dismiss on alternate grounds of statutory
interpretation that were not touched upon by the parties
in the trial court or in their briefs to this court.16 For
the reasons that follow, the dissent's criticisms are
unfounded.

We begin by addressing the dissent's contention that
‘‘neither the oil consumed nor the landfills alleged by
the plaintiff to be polluted by the defendants' conduct
are natural resources within the meaning of § 22a-16,''
and, therefore, ‘‘the plaintiff does not have standing
under § 22a-16 to seek to protect those resources
. . . .'' As we previously have noted in this opinion,
‘‘[i]n ruling upon whether a complaint survives a motion
to dismiss, a court must take the facts to be those
alleged in the complaint, including those facts necessarily
implied from the allegations, construing them in a
manner most favorable to the pleader.'' (Internal quotation
marks omitted.) Brookridge District Assn. v. Planning
& Zoning Commission, supra, 259 Conn. 611.
The dissent's narrow reading of the allegations of the
complaint pertaining to excessive energy use and overburdening
of landfills as being limited to the defendants'
consumption, i.e., destruction, of oil and the pollution
of landfills, violates this basic principle. As the plaintiff
indicated in its brief and in response to questioning by
Justice Borden at oral argument,17 and as a fair reading
of the complaint shows, the plaintiff's claims reasonably
may be construed to be that (1) the defendants' excessive
use of oil would unreasonably pollute the air and
(2) that the placement of demolition debris in landfills
would both pollute the land directly18 and result in
future emanations from the landfills that could impair
the air, water, land, plants, wildlife and other natural
resources of the state. Air and land - at least certain
types of land - indisputably are protectible natural
resources under § 22a-16.19 See Paige v. Town Plan &
Zoning Commission, 235 Conn. 448, 454–64, 668 A.2d
340 (1995) (noting that General Statutes § 22a-1, which
refers to ‘‘[t]he air, water, land and other natural
resources,'' informs meaning of ‘‘natural resources''
under act). The mere fact that the narrow, exclusive
construction that the dissent has chosen to impose on
the plaintiff's allegations - which exclusive construction
the plaintiff specifically disclaimed in its brief and
at oral argument - may be noncognizable under § 22a-
16 - an issue that, we repeat, was not raised before the
trial court or in the briefs to this court, and was raised
in passing at oral argument only in response to the
dissenting justice's questioning - does not, in our view,
justify dismissing the allegations without providing the
plaintiff with an opportunity to prove its claims of air
and land pollution within the state of Connecticut.20

We next address the dissent's statement that ‘‘Nizzardo
does not and cannot control the question of
whether the plaintiff has stated a substantive cause of
action under § 22a-16.'' The dissent states that it ‘‘simply
[does] not see how a case that involved statutory standing
to intervene under § 22a-19 can, ipso facto, control
the different question of whether the plaintiff's complaint
stated an independent cause of action under
§ 22a-16,'' and criticizes the majority for failing to conduct
‘‘an inquiry into both the language and purpose of
§ 22a-16.'' The dissent has failed to instruct us, however,
on how to avoid the logic of the analysis that it criticizes:
under Nizzardo, Alves has no jurisdiction to consider
environmental matters; the plaintiff seeks a declaratory
judgment that Alves, in administering the demolition
code, must consider environmental matters; therefore,
the plaintiff seeks relief that cannot be granted. We
cannot perceive how a philosophical inquiry into the
language and purpose of § 22a-16 would further elucidate
this matter.

We next address the dissent's argument that the reasoning
of McCutcheon & Burr, Inc. v. Berman, supra,
218 Conn. 526, does not extend to the circumstances
of this case because, in that case, unlike here, ‘‘the
parties addressed themselves in substance to the question
that was briefed, argued and decided in both the
trial court and this court.'' We disagree. The underlying
issue in the present case, i.e., the effect of an administra-
tive agency's lack of authority to consider environmental
questions on its liability to suit under the act, has
been fully addressed by the parties, both in the trial
court and before this court. Indeed, that was the only
issue briefed and argued by the parties.21 On the basis
of our review, we have concluded that Alves' lack of
statutory authority to consider environmental issues
did not deprive the plaintiff of standing under the act
and, accordingly, did not deprive the trial court of subject
matter jurisdiction. We also have concluded, however,
that, under Nizzardo v. State Traffic
Commission, supra, 259 Conn. 154,22 Alves' lack of
authority to consider environmental questions means
that, as a matter of law, the plaintiff cannot state a
claim against him upon which relief can be granted,
thereby properly subjecting the claims to a motion to
strike.

Similarly, our conclusion in McCutcheon & Burr,
Inc., that the defendants' motion to dismiss was an
improper procedural vehicle was based on our determination
that a failure to comply with General Statutes
§ 20-325a (b) was not, as the defendants in that case had
claimed, subject matter jurisdictional. We concluded
instead that ‘‘[a]n action to enforce a listing agreement
is essentially a breach of contract claim, and the trial
court clearly had subject matter jurisdiction over such
a claim.'' McCutcheon & Burr, Inc. v. Berman, supra,
218 Conn. 527. We also concluded, however, that the
plaintiff's failure to comply with the statute rendered
the complaint legally insufficient, thereby subjecting it
to a motion to strike, even though no such claim had
been made or such motion filed. Id.

Thus, there is no basis for the dissent's statement
that McCutcheon & Burr, Inc., involved ‘‘the exact
opposite'' of our decision in the present case. As we
have explained, the defendants' claim in the present
case, just as it was in McCutcheon & Burr, Inc., is that
the trial court properly found that it had no subject
matter jurisdiction over the claims against Alves. We
have concluded in this case, just as we did in McCutcheon
& Burr, Inc., that the defendants' motions to
dismiss improperly were granted because they did not,
as claimed by the defendants, implicate the trial court's
subject matter jurisdiction. We also have concluded,
however, that the claims for relief against Alves, like
the claims in McCutcheon & Burr, Inc., properly would
have been subject to a motion to strike. We are not
sure what ‘‘the exact opposite'' of our decision in
McCutcheon & Burr, Inc., would be,23 but we are confident
that that is not what we have done here.

Finally, we note that, under our decision in this case,
§ 22a-16 continues to provide redress for all ‘‘unreasonable
pollution, impairment or destruction'' of ‘‘the air,
water and other natural resources of the state,'' in that
it allows ‘‘any person'' to ‘‘maintain an action'' against
‘‘any person'' who, ‘‘acting alone, or in combination
with others'' directly engages in such activity. General
Statutes § 22a-16. Nothing in this decision is contrary
to our dicta in Nizzardo v. State Traffic Commission,
supra, 259 Conn. 159, that, ‘‘[i]f a party wants to raise
environmental concerns that are beyond the scope of
authority of a particular agency, [§ 22a-16] provides a
means for doing so . . . .'' For example, the plaintiff
in Nizzardo would have had a cause of action under
§ 22a-16 against the defendant, First Stamford Corporation,
on the basis of its allegation that the proposed
commercial development would violate the act.

Moreover, as we have noted, nothing precludes an
action pursuant to § 22a-16 against a governmental body
that is itself engaging in polluting activities, regardless
of whether that body has jurisdiction to consider environmental
matters. The fact that there is no cause of
action against a governmental body if it has no duty to
consider environmental matters in making its regulatory
decisions does not mean that there is no cause of
action if its conduct directly results in harm to the
natural resources of the state. For example, the defendants
in Waterbury v. Washington, supra, 260 Conn.
506, sufficiently alleged in their counterclaim a cause
of action against the plaintiff city of Waterbury, even
though there was no evidence in that case that Waterbury
had enacted environmental ordinances under
which it would have had jurisdiction to consider the
environmental matters raised by the defendants,
because the defendants alleged that Waterbury itself
was engaged in the misconduct.

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