Rocky Hill v. SecureCare Realty, LLC ( 2015 )

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TOWN OF ROCKY HILL v. SECURECARE
REALTY, LLC, ET AL.
(SC 19275)
Rogers, C. J., and Palmer, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.
Argued September 23, 2014—officially released January 6, 2015
Proloy K. Das, with whom, were Morris R. Borea,
and, on the brief, Thomas A. Plotkin, for the appel-
lant (plaintiff).
Jonathan M. Starble, for the appellees (defendants).
Ross H. Garber and Michael A. King filed a brief
for the Connecticut Conference of Municipalities as
amicus curiae.
Opinion
VERTEFEUILLE, J. This case presents the question
of whether a group of private entities, who together
have contracted with the state pursuant to General Stat-
utes § 17b-372a1 to provide nursing home services to
state prisoners and others in state custody, comprise
an ‘‘arm of the state’’ that may assert the defense of
sovereign immunity in an action brought against them
by a municipality claiming noncompliance with its zon-
ing regulations. The plaintiff, the town of Rocky Hill,
appeals from the trial court’s dismissal of an action for
declaratory and injunctive relief that the plaintiff had
brought against the defendants, SecureCare Realty, LLC
(SecureCare), the owner of the real property at issue,
and iCare Management, LLC (iCare), a management and
consulting firm overseeing the development of a § 17b-
372a nursing home on that property. A third entity,
SecureCare Options, LLC (Options), was formed by
iCare to lease the property from SecureCare and to
operate the nursing home, but is not a party to this
action. The plaintiff claims that the trial court improp-
erly dismissed the action against the defendants
because, contrary to the conclusions of the trial court,
(1) they are not an ‘‘arm of the state,’’ entitled to sover-
eign immunity, pursuant to the test articulated by this
court in Gordon v. H.N.S. Management Co., 272 Conn.
81, 98–100, 861 A.2d 1160 (2004), and (2) the legislature,
by its enactment of § 17b-372a, did not intend to pre-
empt the application of local zoning laws to the owners
and operators of private nursing home properties with
which the state contracts under the authority of that
provision. We agree with both of these claims and,
accordingly, reverse the judgment of the trial court.2
The operative complaint, dated January 23, 2013, con-
tains the following allegations, which the defendants
did not dispute. SecureCare is a private company that
owns property in the town of Rocky Hill, on which a
nursing home facility previously had been operated.
The property is located in a district that is zoned for
residential use. SecureCare has neither sought nor
received from the plaintiff any special use permits in
connection with its use of the property.3
iCare is a private management and consulting com-
pany that, at the time the action was commenced, was
negotiating with the state to reopen the nursing home
facility on the property and to place at that facility
individuals who were in state custody. In connection
with this plan, iCare formed SecureCare for purposes
of owning the property.
The project contemplated by the defendants and the
state was authorized by No. 11-44, § 117, of the 2011
Public Acts, codified at § 17b-372a, which permits cer-
tain state officials to ‘‘establish or contract for the estab-
lishment of’’ nursing home facilities for state prisoners
and individuals receiving services from the Department
of Mental Health and Addiction Services (department).
See footnote 1 of this opinion. According to the com-
plaint, ‘‘[t]he rationale behind [this] legislation is to
place prisoners who would otherwise be incarcerated
in state correctional facilities in private facilities so that
their health care costs would be covered by the federal
Medicaid program.’’4 The complaint alleged further that
the legislature did not intend for such facilities to be
located in residential areas, and that the state, when
requesting proposals, had indicated that property on
which a § 17b-372a facility would be located must
already be properly zoned for that use.
According to the complaint, the state recently had
announced plans for a ‘‘§ 17b-372a [f]acility to be owned
and operated by a private contractor and located at the
[p]roperty [owned by SecureCare].’’ The plaintiff sought
declaratory and injunctive relief, namely, a determina-
tion that the defendants were prohibited from opening
or operating the proposed facility on the property
because such use would be noncompliant with town
zoning regulations and did not constitute a prior non-
conforming use, and no special permit had been sought
or issued.5
The defendants responded to the plaintiff’s complaint
by filing a motion to dismiss. Therein, they claimed
that the action was barred by sovereign immunity and,
therefore, should be dismissed for lack of subject mat-
ter jurisdiction. According to the defendants, they were
an ‘‘arm of the state’’ pursuant to the test articulated
by this court in Gordon v. H.N.S. Management Co.,
supra, 272 Conn. 98–100, and, therefore, immune from
suit. The defendants filed a number of affidavits and
exhibits in support of their motion to dismiss, including:
the department’s February 6, 2012 request for proposals
concerning the nursing home project and iCare’s March
30, 2012 response thereto; a June 11, 2012 letter from
the department awarding iCare the opportunity to enter
contract negotiations; the affidavit of Chris S. Wright,
who is president of iCare, SecureCare and Options;
Wright’s September 6, 2012 letter to a department offi-
cial discussing iCare’s progress and requesting certain
contractual assurances before iCare would move for-
ward with the project; an October 5, 2012 letter
agreement subsequently executed by iCare and the
department; a January 30, 2013 start-up contract
between Options and the department; a series of corre-
spondence between Jonathan Starble, the defendants’
counsel, and Kim Ricci, the plaintiff’s zoning enforce-
ment officer; and a document, captioned ‘‘Frequently
Asked Questions,’’ that was released by the department
on December 11, 2012, to provide information to the
public about the nursing home project. The plaintiff
filed an objection to the motion to dismiss along with
several exhibits and affidavits, including the affidavit
of Ricci and a transcript from the department’s March 5,
2012 bidders’ conference for the nursing home project.
The department’s February 6, 2012 request for pro-
posals described the general parameters for the pro-
posed nursing home project and invited qualified
bidders to apply. It indicated that existing nursing home
facilities were preferred, and that ‘‘[t]he proposed build-
ing must be properly zoned’’ to accommodate the identi-
fied clientele. Regarding proposed sites for the facility,
bidders were directed to identify and describe the fea-
tures of specific locations, and to include ‘‘proof of
compliance with zoning . . . .’’ Consistent with the
request for proposals, the bidders’ conference tran-
script reflects that, at that conference, a representative
of the Department of Correction informed prospective
bidders that the state was looking for a facility that
already was properly zoned for the nursing home proj-
ect. The request for proposals also required bidders to
provide detailed evidence of their financial strength and
stability, including an explanation of how they would
fund the project, and to include proof of any liability
insurance they presently held.
In its response to the request for proposals, iCare
stated, in regard to location, that it was ‘‘considering
the purchase of a presently vacant and appropriately
zoned’’ nursing home facility. It indicated further that
it would form a new entity to manage the proposed
facility, if it were awarded the contract, and that the
new entity would provide ‘‘a substantial real estate tax
base for the local municipality’’ in which the facility
was located.6 iCare also represented that it currently
managed nine other nursing home facilities in Connecti-
cut, all of which had been purchased from state receiv-
ership.7
In his September 6, 2012 letter to the department,
following the department’s offer to iCare to enter con-
tract negotiations, Wright informed the department that
iCare was pursuing the purchase of the existing facility
in the town of Rocky Hill for the project. He stated that
iCare had engaged legal counsel ‘‘to investigate relevant
zoning issues’’ with the plaintiff, and that counsel
‘‘believe[d] that a nursing home could be reopened at
this site without any public zoning hearing or significant
permitting process.’’8
In his affidavit, Wright attested, in relevant part, to
the following: On October 5, 2012, the department and
iCare had entered a letter agreement regarding develop-
ment of the nursing home project. SecureCare was cre-
ated on October 31, 2012, for the sole purpose of owning
the nursing home property, and had purchased it in
November, 2012, for $1.9 million plus $119,000 in associ-
ated costs. Additionally, Options was created on the
same day as SecureCare, for the sole purpose of
operating, as a tenant, that nursing home property. On
January 30, 2013, the department and Options had
entered a start-up contract. Finally, the department and
Options were in the process of finalizing an ‘‘[o]pera-
tions [c]ontract.’’
The October 5, 2012 letter agreement was signed by
Wright, as president of iCare, and a representative of
the department. Generally, it provided that the state
would reimburse iCare ‘‘or its affiliates’’ for up to
$500,000 of their ‘‘start-up costs such as hiring of per-
sonnel, capital improvements, and licensure expenses,’’
upon the purchase of a nursing home facility but prior
to licensure of that facility. Additionally, the letter
agreement provided that, in the event the facility never
received licensure or admitted clients, or subsequently
was closed due to state action, the state would reim-
burse iCare up to $500,000 in the first year, and an
unspecified ‘‘diminishing amount’’ in the second year,
‘‘for reasonable close-down costs and losses associated
with owning the real estate.’’9
The January 30, 2013 start-up contract is a standard-
ized form agreement used by the department to contract
for personal services, with some customization specific
to the nursing home project. Under the heading of
‘‘[d]escription of [s]ervices,’’ it stated that Options will
‘‘procure and develop’’ the nursing home at issue, ‘‘and
. . . take all steps necessary to prepare [it] for opera-
tion . . . .’’ The contract period is identified as the
eight month period ending June 30, 2013, and the total
cost of the contract is capped at $800,000, including
approximately $322,866 of expenses already incurred.
Similar to the letter agreement, the start-up contract
provides for reimbursement of reasonable start-up
expenses, including those incurred by iCare and
SecureCare, such as ‘‘costs associated with the acquisi-
tion of the facility, staff recruitment costs, medical and
program supplies needed prior to opening of the pro-
gram, and . . . other [department approved] expenses
. . . .’’ It also provides that, subject to a cap of $50,000,
the state ‘‘shall . . . pay for all reasonable litigation
costs and [attorney’s] fees incurred in the defense of
[this action] and any other similar legal challenge to
the [f]acility’s operation.’’
Additionally, the start-up contract requires Options
to do the following things: comply with all applicable
local, state and federal laws and regulations, including,
in particular, ‘‘zoning’’; indemnify the state and carry
sufficient insurance to hold the state harmless ‘‘from
any insurable cause whatsoever’’; notify the depart-
ment, in writing, if it is involved in litigation that could
affect its ability to perform its contractual obligations;
submit to an annual financial audit; allow a state auditor
to access its accounts and records; and provide the
department the ‘‘statistical, financial and programmatic
information [that is] necessary to monitor and evaluate
compliance with the contract.’’
The start-up contract further expresses the parties’
intention to enter into a separate ‘‘[p]urchase of [s]er-
vice . . . contract governing the operation of the facil-
ity’’ and the department’s reimbursement of Options
for operating expenses. Finally, it includes the following
statement: ‘‘The parties acknowledge that [Options] and
its affiliate, [SecureCare], (a) were created for the pur-
pose of [developing and operating a § 17b-372a nursing
home facility] and (b) are financially dependent on the
[s]tate due to the fact that the [s]tate shall be the sole
referral source and primary payment source for the
[f]acility.’’
After reviewing the foregoing evidence and conclud-
ing that there were no relevant facts in dispute requiring
an evidentiary hearing, the trial court, in its memoran-
dum of decision, dismissed the plaintiff’s action for lack
of subject matter jurisdiction.10 The court analyzed the
factors set forth in Gordon v. H.N.S. Management Co.,
supra, 272 Conn. 98–100, and determined that, with the
evidence presented, the defendants ‘‘persuasively [had]
demonstrated that five of the eight criteria support[ed]
the conclusion that [they were] an arm of the state.’’
The trial court concluded additionally that, even if the
defendants were not shielded by sovereign immunity
as an arm of the state, the plaintiff’s zoning authority
over the project was ‘‘expressly preempted by § 17b-
372a.’’11 This appeal followed.
The plaintiff claims that the trial court improperly
concluded that the defendants are an ‘‘arm of the state,’’
absolutely shielded from suit by sovereign immunity,
because none of the factors of Gordon v. H.N.S. Man-
agement Co., supra, 272 Conn. 98–100, was conclusively
proven. The plaintiff contends further that the court
improperly held that local zoning regulations were pre-
empted by § 17b-372a. The defendants argue, to the
contrary, that the evidence presented supported a deter-
mination, pursuant to Gordon, that they were immune
from suit, or, in the alternative, that the trial court
correctly concluded that § 17b-372a preempts the appli-
cation of local zoning regulations to the nursing home
project. We agree with the plaintiff as to both of its
claims.
We begin with the standard of review and the general
principles governing a trial court’s disposition of a
motion to dismiss that challenges jurisdiction. The
defendants’ claim that they are an arm of the state is
an assertion of ‘‘sovereign immunity [that] implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. . . . A determination
regarding a trial court’s subject matter jurisdiction is a
question of law.’’ (Internal quotation marks omitted.)
Bloom v. Gershon, 271 Conn. 96, 113, 856 A.2d 335
(2004); see also Fresenius Medical Care Cardiovascu-
lar Resources, Inc. v. Puerto Rico & the Caribbean
Cardiovascular Center Corp., 322 F.3d 56, 61 (1st Cir.)
(question of whether entity is arm of state entitled to
immunity is legal one), cert. denied, 540 U.S. 878, 124
S. Ct. 296, 157 L. Ed. 2d 142 (2003). The defendants’
claim that § 17b-372a preempts local zoning requires
an analysis of the statutory language and, therefore, also
presents a legal question. Hackett v. J.L.G. Properties,
LLC, 285 Conn. 498, 502–503, 940 A.2d 769 (2008).
Accordingly, ‘‘[o]ur review of the court’s ultimate legal
conclusion[s] and resulting [determination] of the
motion to dismiss will be de novo.’’ (Internal quotation
marks omitted.) Gold v. Rowland, 296 Conn. 186, 200,
994 A.2d 106 (2010).
Depending on the record before it, a trial court ruling
on a motion to dismiss for lack of subject matter juris-
diction pursuant to Practice Book § 10-31 (a) (1) may
decide that motion on the basis of: ‘‘(1) the complaint
alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint sup-
plemented by undisputed facts plus the court’s resolu-
tion of disputed facts. . . . Different rules and
procedures will apply, depending on the state of the
record at the time the motion is filed.’’ (Citation omitted;
internal quotation marks omitted.) Conboy v. State, 292
Conn. 642, 651, 974 A.2d 669 (2009).
If the court decides the motion on the basis of the
complaint alone, ‘‘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 allegations, construing them in a manner most
favorable to the pleader. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence [for example, contract docu-
ments] . . . and/or public records of which judicial
notice may be taken . . . the trial court, in determining
the jurisdictional issue, may consider these supplemen-
tary undisputed facts and need not conclusively pre-
sume the validity of the allegations of the complaint.
. . . Rather, those allegations are tempered by the light
shed on them by the [supplementary undisputed facts].
. . . If affidavits and/or other evidence submitted in
support of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings. . . . If, how-
ever, the defendant submits either no proof to rebut
the plaintiff’s jurisdictional allegations . . . or only evi-
dence that fails to call those allegations into question
. . . the plaintiff need not supply counteraffidavits or
other evidence to support the complaint, but may rest
on the jurisdictional allegations therein. . . .
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties.’’ (Cita-
tions omitted; emphasis in original; footnotes omitted;
internal quotation marks omitted.) Id., 651–54.
In the present matter, although the parties submitted
a significant amount of evidence, some of which was
in conflict, the trial court decided the defendants’
motion to dismiss on the basis of the legislation author-
izing the nursing home project and on aspects of the
evidence that were undisputed, namely, the nature, pur-
pose and structuring of the project, as reflected in the
various documentary evidence and Wright’s affidavit,
and certain terms of the letter agreement and start-
up contract between the department and iCare and
Options, respectively. Applying the factors established
by Gordon v. H.N.S. Management Co., supra, 272 Conn.
98–100, to these undisputed facts, the court concluded
that a majority of those factors persuasively was estab-
lished and, on balance, weighed in favor of affording
sovereign immunity to the defendants. Analyzing § 17b-
372a, the court also concluded, in the alternative, that
that provision preempted local zoning regulations,
regardless of whether the defendants were an arm of
the state. Although we agree with the trial court that
the evidence submitted by the parties did not give rise
to any significant factual disputes, we disagree, for the
reasons that follow, with the legal conclusions that the
court drew on the basis of that evidence and its analysis
of § 17b-372a.
I
The plaintiff claims first that the trial court improp-
erly concluded that the defendants were an ‘‘arm of the
state’’ and, therefore, shielded from suit by the defense
of sovereign immunity. It contends that the court, on
the evidentiary record before it, improperly found that
the multifactor test set forth by this court in Gordon
v. H.N.S. Management Co., supra, 272 Conn. 98–100,
for establishing if an entity is an ‘‘arm of the state’’ had
been satisfied, as was the defendants’ burden to show
that they were entitled to sovereign immunity. The
defendants, in response, contend that the court properly
concluded that they were an ‘‘arm of the state’’ pursuant
to Gordon. We agree with the plaintiff.12
In Gordon, this court held, in two actions seeking
uninsured and underinsured motorist benefits, that a
private management company, which had contracted
with the state to operate certain of its public bus ser-
vices, shared the state’s sovereign immunity. Id., 85, 105.
In so holding, we examined case law from analogous
contexts and other jurisdictions and provided a list of
factors to guide courts in determining whether an entity
should be immune from suit as an ‘‘arm of the state.’’
Id., 93–98. Specifically, courts should consider whether:
‘‘(1) the state created the entity and expressed an inten-
tion in the enabling legislation that the entity be treated
as a state agency; (2) the entity was created for a public
purpose or to carry out a function integral to state
government; (3) the entity is financially dependent on
the state; (4) the entity’s officers, directors or trustees
are state functionaries; (5) the entity is operated by
state employees; (6) the state has the right to control
the entity; (7) the entity’s budget, expenditures and
appropriations are closely monitored by the state; and
(8) a judgment against the entity would have the same
effect as a judgment against the state.’’ (Footnotes omit-
ted.) Id., 98–100. Moreover, we explained that, ‘‘[t]o
establish that an entity is an arm of the state, an entity
need not satisfy every criteria. Rather, [a]ll relevant
factors are to be considered cumulatively, with no sin-
gle factor being essential or conclusive.’’ (Internal quo-
tation marks omitted.) Id., 100. Finally, we recognized,
the foregoing criteria are, to some degree, ‘‘interrelated
and overlapping.’’ Id.
In Gordon, we concluded that five of the eight factors
had been satisfied and, on balance, weighed in favor
of a conclusion that the defendant was an arm of the
state. Id., 102–105. Notably, the case presented a unique
and rather extreme set of facts. The state, pursuant to
an expressly articulated legislative policy, essentially
had taken over a formerly privately owned bus system,
then hired management companies such as the defen-
dant to run that system for the benefit of the public.
Id., 85. The defendant was entirely dependent on the
state because the state owned all of the assets required
to run the system, including the buses, the buildings in
which the defendant had its offices and everything in
those buildings, and further, the defendant was required
to turn all fare revenue over to the state as soon as
it was collected. Id., 103. Moreover, the defendant’s
operating budget was financed entirely by the state on
a month to month basis, requiring close monitoring
and regular approval, and the state contractually was
required to purchase liability insurance for the defen-
dant and to indemnify it for any tort claims on which
it became liable. Id., 86, 103. The overall system was
subject to oversight through the Department of Trans-
portation, thus making ‘‘all major issues of policy, plan-
ning and operations’’ within the control of the state.
Id., 103. Finally, a judgment against the defendant would
have had the same practical effect as a judgment against
the state, because the state ultimately would have had
to reimburse the defendant for any damages award
pursuant to the indemnification requirement, and addi-
tionally, it would have had to purchase uninsured/
underinsured motorist coverage for its entire fleet of
buses. Id., 104. As should be clear from its context, our
holding in Gordon was not intended to apply broadly
to all private entities providing contractual services to
the state, but rather, was narrowly confined to situa-
tions presenting an extraordinary level of state depen-
dency and control.13
When applying the various factors under Gordon,
courts must remain cognizant of the rationale underly-
ing the doctrine of sovereign immunity. Although, in
the past, we have explained that doctrine in theoretical
terms, namely, ‘‘that there can be no legal right as
against the authority that makes the law on which the
right depends . . . [t]he modern rationale for the doc-
trine . . . rests on the more practical ground that the
subjection of the state and federal governments to pri-
vate litigation might constitute a serious interference
with the performance of their functions and with their
control over their respective instrumentalities, funds
and property.’’ (Citation omitted; internal quotation
marks omitted.) Shay v. Rossi, 253 Conn. 134, 165–66,
749 A.2d 1147 (2000), overruled in part by Miller v.
Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); see C.
R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250,
259 n.6, 932 A.2d 1053 (2007). Pursuant to this rationale,
‘‘the doctrine protects the state from unconsented to
litigation, as well as unconsented to liability.’’ Shay v.
Rossi, 166.
Additionally, as the United States Court of Appeals
for the Eleventh Circuit has explained in the analogous
context of eleventh amendment immunity,14 when a cor-
porate entity attempts to assert a state’s sovereignty
without clear legislative support for that position,
‘‘there is great reason for caution’’; Fresenius Medical
Care Cardiovascular Resources, Inc. v. Puerto Rico &
the Caribbean Cardiovascular Center Corp., supra, 322
F.3d 63; due to the broader consequences that poten-
tially could result from conferring immunity. Id., 63–64.
In the present matter, for example, a holding that the
defendants essentially are state actors might not just
relieve them from the obligation of complying with zon-
ing regulations, but also could shield them from munici-
pal taxation and from various future lawsuits such as
tort actions brought by their employees or patients or
others harmed by their negligent acts. This could create
a disincentive to safe practices. See Veolia Water India-
napolis, LLC v. National Trust Ins. Co., 3 N.E.3d 1, 9
(Ind.) (observing that ‘‘granting common law sovereign
immunity to a private [for profit] company . . . invites
negligence’’), reh. denied, 12 N.E.3d 240 (2014). In short,
sovereign immunity is ‘‘strong medicine’’ that should
not be granted lightly to private actors. Del Campo v.
Kennedy, 517 F.3d 1070, 1075–76 (9th Cir. 2008).
Considering the eight Gordon factors in relation to
the facts of this case, the trial court concluded that five
of them had been persuasively demonstrated by the
defendants and that together, those five factors ‘‘clearly
weigh[ed] in favor of the defendants and require[d] [the]
court to find that [they] are in fact an arm of the state
entitled to sovereign immunity.’’ We will examine each
of those factors in turn, reviewing the court’s subsidiary
and ultimate conclusions.15
The trial court concluded first that the defendants
were ‘‘ ‘created to carry out a function integral to state
government,’ ’’ namely, to provide nursing home ser-
vices, pursuant to § 17b-372a, to individuals who either
are transitioning from a correctional facility or are
receiving services from the state. According to the
court, ‘‘the defendants were created exclusively for the
purpose of running such a facility and . . . effectively
[are] providing services on behalf of the state to individ-
uals [who] would otherwise be receiving those services
directly from the state.’’ We agree with the trial court
that the provision of vital nursing home services to
those in state custody, or transitioning from it pursuant
to General Statutes § 18-100i, is the performance of
a governmental function,16 specifically authorized by
legislation that gave the state the option of either provid-
ing these services itself or contracting with another
party. Cf. Gordon v. H.N.S. Management Co., supra, 272
Conn. 102 (contractual services expressly authorized
by legislation, in furtherance of stated public policy,
fulfilled public purpose); see also footnotes 1 and 4 of
this opinion. We agree further that the nursing home
project was ‘‘created exclusively for [this] purpose,’’
because, as evidenced by the start-up contract so stat-
ing, no patients other than those referred by the state
will be admitted. Accordingly, we agree with the trial
court that this factor weighs in favor of characterizing
the defendants as an arm of the state.
The trial court concluded next that the defendants
had shown that they were ‘‘at least partially, and per-
haps completely, financially dependent on the state.’’
(Internal quotation marks omitted.) The court cited the
language of the start-up contract so declaring, with
respect to Options and SecureCare, and opined that
that statement was ‘‘supported by the substance of the
relationship between the defendant[s] and the state.’’
According to the court, because the state ‘‘is the only
customer of the defendants, the defendants rely [on]
the state for their financial success.’’ The court further
reasoned that the department is ‘‘required to reimburse
the defendants for all start-up costs,’’ and that future
reimbursements also will be cost based.
We disagree with the trial court’s reasoning as to the
extent of the defendants’ financial dependence on the
state. Although the state may be Options’, and by exten-
sion, SecureCare’s, only ‘‘customer,’’ it is not their only
source of funding. Rather, a large portion of the nursing
home project’s funding appears to have come from
iCare. Although iCare’s financial information was not
part of the record; see footnote 7 of this opinion; it may
be presumed from the fact that it was awarded the
nursing home contract that it had substantial financial
strength and stability, independent of this state con-
tract, because that is what the request for proposals
required. Moreover, it was able to provide SecureCare
with approximately $2 million with which to purchase
the nursing home property. Although the letter
agreement and start-up contract provide for reimburse-
ment of the various start-up costs for the facility, they
do not provide for reimbursement of this purchase price
unless the facility never opens or subsequently is
closed, in which case reimbursement is limited to only
$500,000 in the first year and some unspecified, ‘‘dimin-
ishing amount’’ in the second year. Additionally, a signif-
icant portion of the funding for the operation of the
nursing home will derive from federal Medicaid dollars,
further undercutting the defendants’ claim that they
are entirely financially dependent on the state.17 Cf.
Fresenius Medical Care Cardiovascular Resources,
Inc. v. Puerto Rico & the Caribbean Cardiovascular
Center Corp., supra, 322 F.3d 74 (‘‘doubtful’’ whether
Medicaid funds should be considered in arm of state
immunity analysis because ‘‘private, for-profit hospitals
receive these reimbursements as a matter of course’’).
As to this factor, the facts of this case stand in con-
trast to those of Gordon v. H.N.S. Management Co.,
supra, 272 Conn. 103, wherein the defendant’s financial
dependence was established by the fact that the state,
in addition to paying all of the defendant’s ongoing
operating expenses and taking immediate ownership
of its revenues, also ‘‘own[ed] all of the assets required
to operate the defendant’s business, including the build-
ings in which it ha[d] its offices, everything in the build-
ings, and the buses.’’ Here, the defendants purchased
and own their own physical plant, with any reimburse-
ment by the state only partial and contingent on a shut-
down. Additionally, the defendants will receive
substantial federal funding in addition to direct state
support. Accordingly, we conclude, contrary to the trial
court, that the financial dependence factor does not
weigh strongly in support of a holding that the defen-
dants are an arm of the state.
The trial court also concluded that the defendants’
budget, expenditures and appropriations were closely
monitored by the state. The court rested this conclusion
on the terms of the start-up contract between the
department and Options making reimbursement cost
based, requiring the submission of invoices showing
actual costs, and providing for an audit of Options and
state access to its records.
Although the cited terms suggest some monitoring
by the state, that evidence is not overly compelling.
First, the start-up contract covers only an eight month
period and pertains largely to the procurement and
preparation of the nursing home facility, the hiring of
its staff and the obtaining of licensure, prior to the
admission of patients. Accordingly, any conclusion by
the court as to how Options’ budget, expenditures and
appropriations would be monitored by the state once
the facility commenced operating was entirely specula-
tive. Although the start-up contract indicates that an
additional operations agreement was being negotiated,
there was no such agreement in evidence. In any event,
even if the future operating agreement is presumed to
include the same terms as the start-up agreement, we
disagree that they establish that the defendants’ budget,
expenditures and appropriations are so closely moni-
tored by the state that this factor weighs significantly
in favor of a conclusion that they are an arm of the
state. There is no detail as to the actual level of reporting
or auditing required, nor is it apparent that these
requirements are any more onerous than those imposed
on any other contractor providing similar services to
the state.18
The trial court next determined that ‘‘a judgment
against [the defendants] would for all practical pur-
poses be a judgment against the state.’’ In this regard,
the court noted the provisions of the letter agreement
making the department ‘‘liable largely for the costs of
the facility, including the start-up costs and . . . the
close down costs,’’ which includes ‘‘the price paid for
the facility property.’’ It reasoned that, if the plaintiff
were successful in stopping the nursing home project,
‘‘it would be the state that absorbed the loss,’’ and
further, the state’s interest in establishing a § 17b-372a
facility would be thwarted. The court also cited the
provision of the start-up contract requiring the state to
pay the defendants’ attorney’s fees in this matter.
Although we agree that an adverse judgment in this
matter would have some impact on the state, the trial
court’s determination as to this factor is overstated. It
is true that, if this litigation were to cause the failure
of the nursing home project, the state would suffer a
significant monetary loss, and further, would need to
pursue an alternative plan for the contracted for nursing
home services. At the same time, however, the defen-
dants would bear a significant portion of the monetary
losses themselves. Pursuant to the letter agreement and
the start-up contract, which appear to overlap, the state
would remain liable for up to $800,000 in start-up costs,
including up to $50,000 for attorney’s fees incurred in
this litigation. By the letter agreement, the state also
agreed, in the event the facility never opens, to reim-
burse the defendants $500,000 for closing costs and
losses associated with owning the facility, plus some
unspecified ‘‘diminishing amount’’ in a subsequent year.
Because the facility was purchased for $1.9 million,
however, the defendants’ financial exposure, in the
event the nursing home cannot operate or be sold,
remains substantial. In short, the effect of an adverse
judgment in this matter would be borne by both the
defendants and the state. Compare Gordon v. H.N.S.
Management Co., supra, 272 Conn. 104 (because of
contractual requirement that state indemnify defen-
dant, state ultimately would be responsible for payment
of any damages award; as practical matter, state also
would be required to purchase uninsured and underin-
sured motorist insurance for all state owned buses oper-
ated by private companies).
In regard to other, potential litigation that could be
brought against the defendants in the future, there is
no indication that the state would share the defendants’
exposure, assuming, again, that the operating contract
includes provisions similar to those in the start-up con-
tract. Pursuant to the start-up contract, Options was
required to indemnify the state and to carry sufficient
insurance to hold the state harmless ‘‘from any insur-
able cause whatsoever.’’ The department’s request for
proposals also required bidders to provide proof ‘‘of
general liability, professional liability and any other lia-
bility policies that [they held] which might provide cov-
erage for activities associated with the [nursing home]
[c]ontract . . . .’’ See United States ex rel. Barron v.
Deloitte & Touche, L.L.P., 381 F.3d 438, 440 (5th Cir.
2004) (no eleventh amendment immunity for private
state contractor where agreement required contractor
‘‘to pay its own judgments and indemnify the [s]tate
from any liability’’), cert. denied sub nom. National
Heritage Ins. Co. v. United States ex rel. Barron, 545
U.S. 1114, 125 S. Ct. 2905, 162 L. Ed. 2d 294 (2005).
Finally, the trial court concluded that the state had
‘‘some right to control the defendants,’’ although in an
indirect manner. The court explained that such indirect
control emanated from the defendants’ dependency on
the state for their business, the cost based reimburse-
ment structure and the state’s ability to audit the defen-
dants. Basically, the court reasoned, the state could
control the defendants by refusing to fund practices it
found excessive or wasteful. As previously explained,
the defendants’ financial dependency and the state’s
audit rights were overstated by the trial court. More-
over, the ‘‘indirect’’ control described by the trial court
is not the type of control envisioned by Gordon, and
in our view, does not weigh strongly in favor of a deter-
mination that the defendants are an arm of the state.
In Gordon v. H.N.S. Management Co., supra, 272 Conn.
103, the state, through the Department of Transporta-
tion, had ‘‘complete control over bus routes, schedules
and fares. Thus, all major issues of policy, planning and
operations relating to the enterprise’s core government
function [were] controlled by the state.’’ Additionally,
the defendant needed state approval to make purchases
other than those of routine supplies, and it also needed
approval to settle larger tort claims. Id., 86–87. There
has been no similar showing of comprehensive and
extensive state control in the present case. Specifically,
there is nothing in the start-up contract mandating par-
ticular policies, procedures or methods of structuring
or operating the nursing home facility.19 When a state
contractor operates as ‘‘an autonomous entity’’ in exe-
cuting its contract with the state, that circumstance
weighs against a determination that it is an arm of the
state. United States ex rel. Barron v. Deloitte & Touche,
L.L.P., supra, 381 F.3d 441.
The trial court also concluded, implicitly, that the
first, fourth and fifth Gordon factors had not been estab-
lished. We agree with that determination. Regarding
the fourth and fifth factors, it is undisputed that the
defendants’ ‘‘officers, directors or trustees’’ are not
‘‘state functionaries,’’ but rather, are private individuals,
and that the nursing home staff are not state employees.
These circumstances weigh additionally against the
defendants as to the factor of state control. As to the
first Gordon factor, the state clearly did not ‘‘create’’
the defendants, which are privately held entities, and
there is nothing in § 17b-372a that remotely suggests a
legislative intention that they be treated as arms of the
state. Rather, the statute gave state officials the option
of either establishing a facility themselves, or con-
tracting out for that service, thereby creating the choice
between providing the contemplated nursing home ser-
vices as a state entity or as a private entity.20 The depart-
ment chose the latter approach, and it obviously
understood and accepted the implications of doing so.
Specifically, it made clear in its request for proposals,
and at the bidders’ conference, that potential contrac-
tors would be required to comply with local zoning
regulations, and subsequent to awarding the contract
to iCare, it assured the plaintiff and its citizens that the
nursing home would pay property taxes. The start-up
contract also requires Options to comply with zoning
regulations.21 That the department itself intended com-
pliance with local regulation weighs significantly
against a finding that the defendants are immune from
such regulation. See Montgomery v. Sherburne, 147 Vt.
191, 192–93, 514 A.2d 702 (1986) (rejecting governmen-
tal immunity claim of private landowner who leased
property to postal service where lease required compli-
ance with local regulations and, prior to entering lease,
postal service sent letter to landowner stating he had
to comply with local zoning ordinance). Finally, the
start-up contract also requires Options to carry liability
insurance, to notify the department if it is sued and to
hold the state harmless. These terms would make little
sense unless the department envisioned the defendants
as being amenable to suit.
Balancing all of the foregoing factors, we conclude,
contrary to the trial court, that they clearly weigh
against a conclusion that the defendants are an arm of
the state, entitled to share the state’s sovereign immu-
nity. Although the defendants are performing a public
function and the financial impact of an adverse judg-
ment would fall partly, and significantly, on the state,
which is a particularly weighty consideration; Gordon
v. H.N.S. Management Co., supra, 272 Conn. 105; there
is little to no support for the remaining six Gordon
factors, particularly those that would evidence state
control of the defendants and the nursing home. We
emphasize that the extension of a state’s immunity to
a private, for profit entity should be a rare occurrence,
and we conclude that the facts of this case do not
present an appropriate occasion for affording such
immunity. Our conclusion finds support in the decisions
of other jurisdictions, which generally refuse to extend
governmental immunity to private contractors, even
when they are fulfilling important governmental func-
tions. See, e.g., Rosario v. American Corrective Coun-
seling Services, Inc., 506 F.3d 1039, 1047 (11th Cir.
2007) (bad check restitution program run by private
contractor for State’s Attorney’s Office not immune
from suit alleging unfair debt collection practices);
Ormsby v. C.O.F. Training Services, Inc., 194 F. Supp.
2d 1177, 1179, 1187 (D. Kan. 2002) (nonprofit corpora-
tion overseeing provision of community services for
developmentally disabled persons, pursuant to contract
authorized by state statute, not immune, as arm of state,
from employee’s action for overtime wages), aff’d, 60
Fed. Appx. 724 (10th Cir. 2003);22 Veolia Water India-
napolis, LLC v. National Trust Ins. Co., supra, 3 N.E.3d
12 (private, for profit company operating city’s water
utility pursuant to agreement not entitled to sovereign
immunity in action seeking damages for losses sus-
tained due to inadequate water supply to fire hydrants);
Macon Assn. for Retarded Citizens v. County Plan-
ning & Zoning Commission, 252 Ga. 484, 490, 314
S.E.2d 218 (governmentally financed nonprofit organi-
zation providing housing for developmentally disabled
and mentally ill persons not exempt from local zoning
regulations), appeal dismissed, 469 U.S. 802, 105 S. Ct.
57, 83 L. Ed. 2d 8 (1984); Board of Childcare of the
Baltimore Annual Conference of the Methodist Church
v. Harker, 316 Md. 683, 685, 693, 561 A.2d 219 (1989)
(nonprofit corporation contracting with state to provide
adolescent shelter facilities, in pursuit of statutory pol-
icy, not entitled to share state’s immunity from munici-
pal zoning ordinances); Washington v. Central Bergen
Community Mental Health Center, Inc., 156 N.J. Super.
388, 406–408, 383 A.2d 1194 (1978) (nonprofit corpora-
tion contracting with state to provide mental health
care and services, pursuant to statutory plan, not
immune from township zoning ordinance as arm of
state government); but see Portsmouth v. John T.
Clark & Son, Inc., 117 N.H. 797, 798–99, 378 A.2d 1383
(1977) (private port terminal operating firm under con-
tract to provide services to state port authority exempt
from city zoning ordinance). For the foregoing reasons,
we conclude that the trial court improperly dismissed
the plaintiff’s action for lack of subject matter jurisdic-
tion on the basis that the defendants were immune from
suit as an arm of the state.
II
The plaintiff also claims that the trial court improp-
erly held that, by enacting § 17b-372a, the legislature
intended to preempt the application of local zoning
laws to facilities established on private land under the
authority of that provision. According to the plaintiff,
the legislature did not intend, by enacting § 17b-372a,
to occupy the entire field as to regulation of nursing
home location, and there is no irreconcilable conflict
between that provision and local zoning laws such that
the two cannot operate in tandem. The defendants con-
tend that the court correctly concluded that § 17b-372a
preempts town zoning regulations, because the legisla-
ture has expressed a clear intent that it do so. We agree
with the plaintiff.23
According to the trial court, even if the defendants
were not an arm of the state, the plaintiff’s zoning
authority, delegated to it by General Statutes §§ 8-1
through 8-13a, is ‘‘expressly preempted by § 17b-372a.’’
The court reasoned that, in § 17b-372a, the language
granting state officials the authority to ‘‘establish or
contract for the establishment of a chronic or convales-
cent nursing home on state-owned or private property’’
is prefaced by the statement, ‘‘[n]otwithstanding any
provision of the general statutes . . . .’’ (Internal quo-
tation marks omitted.) See footnote 1 of this opinion.
According to the trial court, the inclusion of these words
evidenced the legislature’s intent that ‘‘the state’s ability
to establish a [§ 17b-372a] nursing [home] facility pre-
empts and surpasses the plaintiff’s authority to zone
local land use.’’ The court also suggested that § 17b-
372a and local zoning regulations covered the same
field and are in conflict, although it did not provide a
specific analysis in this regard.
‘‘[A] local ordinance is preempted by a state statute
whenever the legislature has demonstrated an intent to
occupy the entire field of regulation on the matter . . .
or . . . whenever the local ordinance irreconcilably
conflicts with the statute. . . . Whether an ordinance
conflicts with a statute or statutes can only be deter-
mined by reviewing the policy and purposes behind the
statute and measuring the degree to which the ordi-
nance frustrates the achievement of the state’s objec-
tives.’’ (Internal quotation marks omitted.) Bauer v.
Waste Management of Connecticut, Inc., 234 Conn. 221,
232, 662 A.2d 1179 (1995), on appeal after remand, 239
Conn. 515, 686 A.2d 481 (1996). ‘‘[T]hat a matter is of
concurrent state and local concern is no impediment
to the exercise of authority by a municipality through
[local regulation], so long as there is not conflict with
the state legislation. . . . Where the state legislature
has delegated to local government the right to deal with
a particular field of regulation, the fact that a statute
also regulates the same subject in less than full fashion
does not, ipso facto, deprive the local government of
the power to act in a more comprehensive, but not
inconsistent, manner.’’ (Internal quotation marks omit-
ted.) Greater New Haven Property Owners Assn. v.
New Haven, 288 Conn. 181, 190–91, 951 A.2d 551 (2008).
A regulation is not necessarily inconsistent because it
imposes standards additional to those required by a
statute addressing the same subject matter. Id., 191.
Where local regulation ‘‘merely enlarges on the provi-
sions of a statute by requiring more than a statute,
there is no conflict unless the legislature has limited the
requirements for all cases.’’ (Internal quotation marks
omitted.) Id. As long as the local regulation does not
‘‘attempt to authorize that which the legislature has
forbidden, or forbid that which the legislature has
expressly authorized, there is no conflict.’’ (Internal
quotation marks omitted.) Id.
We disagree with the trial court’s determination that
the legislature, by its use in § 17b-372a of the broad and
generalized prefatory language, ‘‘[n]otwithstanding any
provision of the general statutes,’’ intended to expressly
preempt the application of local zoning regulations to
nursing home projects established under the authority
of that provision. Although that language, arguably, sug-
gests that § 17b-372a should operate independently of
any other statutory requirements, it says nothing about
the continued applicability of municipal regulations,
including zoning. When the legislature intends for a
statutory provision to apply exclusive both of other
statutes, and of other types of law, it knows how to
say as much. See, e.g., General Statutes § 7-460b (disal-
lowing residency requirement ‘‘[n]otwithstanding any
provision of the general statutes or special act or local
law, ordinance or charter’’); General Statutes § 12-62l
(a) (allowing for delayed property revaluations ‘‘[n]ot-
withstanding any provision of the general statutes, any
municipal charter, any special act or any home rule
ordinance’’); General Statutes § 19a-342 (g) (providing
that ‘‘[t]he provisions of this section [governing the
prohibition of smoking in certain places] shall super-
sede and preempt the provisions of any municipal law
or ordinance relative to smoking’’); General Statutes
§ 23-36 (granting power to fire warden ‘‘[n]otwithstand-
ing any provision of the general statutes or any munici-
pal ordinance’’).
The trial court interpreted § 17b-372a as preempting
zoning regulations more indirectly, by preempting
entirely a town’s statutorily conferred power to regulate
zoning matters pursuant to §§ 8-1 through 8-13a. In
other words, the court reasoned, the legislature, by use
of the ‘‘notwithstanding’’ language, intended to preempt
every other conceivably pertinent statute. Here, how-
ever, there is a strong indication that the legislature,
by inclusion of the ‘‘notwithstanding’’ language, did not
intend to render every other potentially pertinent stat-
ute inapplicable, namely, the last sentence of § 17b-
372a, which provides that ‘‘[a] nursing home developed
under this section is not required to comply with the
provisions of sections 17b-352 to 17b-354, inclusive.’’
See footnote 1 of this opinion. If the legislature had
intended by the prefatory language to render all other
statutes inapplicable to § 17b-372a nursing home proj-
ects, there would have been no need also to include
this more specific caveat. Accordingly, we disagree with
the trial court’s determination that the prefatory lan-
guage of § 17b-372a expressly preempts municipal
authority to regulate zoning.
We further disagree that local zoning regulations are
impliedly preempted because they irreconcilably con-
flict with § 17b-372a or will frustrate the state’s statutory
objective of establishing nursing homes for those in
state custody. As a general matter, zoning regulations
do not bar outright particular uses of land, but require
that they be conducted in certain areas or subject to
various conditions. Thus, a regulation requiring a nurs-
ing home facility to be located in a particular zone, or
to have a permit that might impose conditions on its
operation, does not ‘‘attempt to . . . forbid that which
the legislature has expressly authorized’’; (internal quo-
tation marks omitted) Greater New Haven Property
Owners Assn. v. New Haven, supra, 288 Conn. 191;
but rather, properly subjects what the legislature has
authorized to additional requirements. Id.; see also Hay-
ward v. Gaston, 542 A.2d 760, 767 (Del. 1988) (no con-
flict between statutes granting state power and duty to
establish and operate residential mental health treat-
ment centers and county zoning ordinances governing
their location); Board of Childcare of the Baltimore
Annual Conference of the Methodist Church v. Harker,
supra, 316 Md. 699 (no conflict between state statutes
licensing and regulating child care facilities and county
zoning ordinances governing their location); Washing-
ton v. Central Bergen Community Mental Health Cen-
ter, Inc., supra, 156 N.J. Super. 409–11 (no conflict
between state statute authorizing transitional residen-
tial facilities for former mental health patients and zon-
ing ordinance that fails to permit such facilities in
residential zone); Nyack v. Daytop Village, Inc., 78
N.Y.2d 500, 508, 583 N.E.2d 928, 577 N.Y.S.2d 215 (1991)
(no conflict between state regulation and licensing of
substance abuse treatment facilities and local zoning
governing placement of those facilities); but see Region
10 Client Management, Inc. v. Hampstead, 120 N.H.
885, 888, 424 A.2d 207 (1980) (state’s statutory scheme
of placing developmentally impaired individuals in vari-
ous locations throughout state would be frustrated by
applicability of local zoning restrictions to contem-
plated community residences); compare Delinks v.
McGowan, 148 Conn. 614, 621, 623, 173 A.2d 488 (1961)
(local regulation prohibiting use of property for ‘‘places
of amusement’’ conflicted with state statute authorizing
purchase of that property to provide ingress to hunting
and fishing preserves); Los Angeles v. Dept. of Health,
63 Cal. App. 3d 473, 475–76, 480, 133 Cal. Rptr. 771
(1976) (statute providing that state authorized foster or
group home ‘‘shall be considered a residential use of
property for purposes of zoning’’ and ‘‘shall be a permit-
ted use in all residential zones’’ was intended to preempt
municipal regulation [internal quotation marks
omitted]).
We also disagree that requiring § 17b-372a facilities
established on private property to be zoning compliant
would frustrate the achievement of the state’s objec-
tives to an unacceptable degree. Although the number
of potential locations for such facilities will be lessened
due to the need to comply with zoning regulations,
there is no reason to believe that the state’s interest in
establishing such facilities will be entirely thwarted.
Pursuant to § 17b-372a, the state has the option of estab-
lishing a facility on its own property. Alternatively, it
may contract for the establishment of a facility on pri-
vate property that already is properly zoned, as it
attempted to do in this case.24 The parties ultimately
disputed whether the facility was compliant with zoning
as a preexisting nonconforming use but, because the
case was prematurely dismissed, that dispute is yet to
be resolved.
To summarize, we disagree with the trial court’s
determination that the defendants are an arm of the
state and, therefore, entitled to assert the state’s sover-
eign immunity. We disagree further that the legislature,
in enacting § 17b-372a, intended to preempt the applica-
tion of local zoning regulations to projects authorized
by that provision, or that § 17b-372a and local zoning
regulations irreconcilably conflict. We conclude, there-
fore, that the trial court improperly granted the defen-
dants’ motion to dismiss for lack of subject matter
jurisdiction.
The judgment is reversed and the case is remanded
with direction to deny the motion to dismiss and for
further proceedings according to law.
In this opinion the other justices concurred.
1
General Statutes § 17b-372a provides: ‘‘Notwithstanding any provision
of the general statutes, the Commissioners of Social Services, Correction
and Mental Health and Addiction Services may establish or contract for the
establishment of a chronic or convalescent nursing home on state-owned
or private property to care for individuals who (1) require the level of care
provided in a nursing home, and (2) are transitioning from a correctional
facility in the state, or (3) receive services from the Department of Mental
Health and Addiction Services. A nursing home developed under this section
is not required to comply with the provisions of sections 17b-352 to 17b-
354, inclusive.’’
2
The plaintiff claims further that precluding it from enforcing its zoning
regulations against the defendants constitutes a violation of the home rule
amendment of the state constitution. See Conn. Const., art. X, § 1. In light
of our resolution of the plaintiff’s other two claims, we need not address
this issue.
3
The previous use of the property as a nursing home began prior to the
creation of zoning laws prohibiting that use, but had ceased in September,
2011, approximately thirteen months prior to SecureCare’s purchase of the
property. The parties dispute whether any prior nonconforming use of the
property had been abandoned.
4
Subsequent to the passage of Public Act 11-44, the legislature in a special
session passed another act; see Public Acts, Spec. Sess., June, 2012, No. 12-
1, § 104; which is now codified at General Statutes § 18-100i. General Statutes
§ 18-100i (a) provides: ‘‘The Commissioner of Correction, at the commission-
er’s discretion, may release an inmate from the commissioner’s custody,
except an inmate convicted of a capital felony under the provisions of
section 53a-54b in effect prior to April 25, 2012, or murder with special
circumstances under the provisions of section 53a-54b in effect on or after
April 25, 2012, for placement in a licensed community-based nursing home
under contract with the state for the purpose of providing palliative and
end-of-life care to the inmate if the medical director of the Department of
Correction determines that the inmate is suffering from a terminal condition,
disease or syndrome, or is so debilitated or incapacitated by a terminal
condition, disease or syndrome as to (1) require continuous palliative or end-
of-life care, or (2) be physically incapable of presenting a danger to society.’’
5
The plaintiff also filed applications for a temporary injunction and a
temporary restraining order, contemporaneously with its complaint,
requesting that the defendants be immediately enjoined from taking any
steps to open or operate the proposed facility.
6
The ‘‘Frequently Asked Questions’’ document prepared by the depart-
ment and released to the public after it entered into a contract with iCare,
made a similar representation, namely, that the facility ‘‘will provide tax
revenue [to the plaintiff] as a fully operational nursing home.’’
7
The copy of iCare’s response to the department’s request for proposals
that the defendants included as an exhibit to their motion to dismiss appar-
ently is incomplete. Specifically, it does not include proof of its financial
strength by way of audited financial statements, documentation of available
lines of credit, short-term and long-term debt ratings, an analysis and evalua-
tion of future financial condition and stability, proof of all existing liability
insurance and an explanation of how the project would be funded. Pursuant
to the request for proposals, all of these things ‘‘must be included [in a
bidder’s] proposal.’’ (Emphasis added.)
8
The correspondence between Starble and Ricci, which had been
exchanged between August 31, 2012, and November 9, 2012, indicates that
Starble had sought, and received from Ricci, confirmation that use of the
property as ‘‘a convalescent home’’ was a legal nonconforming use that
would be allowed to continue. In her subsequent affidavit, prepared after
the commencement of this litigation, Ricci attested that the opinion she
had provided to Starble was rendered without complete information, and
was erroneous.
9
Wright’s September 6, 2012 letter to the department official had requested
substantially broader assurances than those subsequently memorialized in
the letter agreement. Essentially, he had requested that the state reimburse
iCare for all of its start-up expenses and purchase the facility from iCare
for the full price paid if the nursing home project were not finalized within
nine months.
10
Because the defendants’ motion to dismiss challenged the court’s juris-
diction, the court had deferred ruling on the plaintiff’s applications for a
temporary injunction and a restraining order until it ruled on the motion
to dismiss. See footnote 5 of this opinion. In light of its dismissal of the
case, it never ruled on those applications.
11
The trial court further disagreed that sovereign immunity should not
apply in the present matter because it would result in a violation of the
plaintiff’s constitutional rights, namely, its right to regulate zoning and the
use of emergency resources pursuant to the home rule amendment of the
state constitution. As we previously have explained, we need not review
the trial court’s determination in this regard because we conclude that the
defendants are not immune from suit.
12
The plaintiff contends, secondarily, that the court should not have dis-
missed its complaint, but rather, should have held an evidentiary hearing
on the defendants’ sovereign immunity claim after permitting discovery on
the Gordon factors. The defendants counter that the court properly dis-
missed the complaint without a hearing because there were no material
facts in dispute in regard to the issue of sovereign immunity. We conclude
that a hearing was not necessary because the evidence presented conclu-
sively established, contrary to the determination of the trial court, that the
defendants were not an arm of the state.
13
Despite the narrowness of our holding in Gordon, the General Assembly
responded by overruling it legislatively. Specifically, in the following year,
the legislature enacted No. 05-220, § 1, of the 2005 Public Acts, which
amended General Statutes § 13b-34 (a), a provision that authorizes the Com-
missioner of Transportation to contract for transportation services, to add
the following language: ‘‘Any person contracting with the state pursuant to
this section for the provision of any transportation service shall not be
considered an arm or agent of the state. Any damages caused by the operation
of such transportation service by such person may be recovered in a civil
action brought against such person in the superior court and such person
may not assert the defense of sovereign immunity in such action.’’
14
Eleventh amendment immunity shields nonconsenting states, and arms
thereof, ‘‘from suits brought in federal courts by [their] own citizens as well
as by citizens of another [s]tate.’’ (Internal quotation marks omitted.) Rosario
v. American Corrective Counseling Services, Inc., 506 F.3d 1039, 1043 (11th
Cir. 2007). The test to determine whether such immunity applies to entities
other than a state includes factors similar to those enumerated in Gordon
v. H.N.S. Management Co., supra, 272 Conn. 98–100, specifically: ‘‘(1) how
state law defines the entity, (2) what degree of control the [s]tate maintains
over the entity, and (3) from where the entity derives its funds and who is
responsible for judgments against the entity.’’ (Internal quotation marks
omitted.) Rosario v. American Corrective Counseling Services, Inc.,
supra, 1043.
15
Similar to the trial court, we will utilize a flexible, project based approach
rather than attempt to analyze each Gordon factor with respect to iCare
and SecureCare separately and without consideration of the nonparty entity
Options. Strict adherence to corporate boundaries makes sense when, for
example, determining whether one entity should be responsible for the
liabilities of another. Taking a broader view is more appropriate in this
context, however, to avoid a cramped, overly technical analysis that ignores
the reality that iCare only recently created SecureCare and Options, specifi-
cally for purposes of the nursing home project, and, because of the three
entities’ interconnected nature, corporate resources and contractual obliga-
tions and benefits effectively flow amongst them.
16
‘‘The [United States] Supreme Court has interpreted the [e]ighth
[a]mendment as guaranteeing a prisoner medical treatment for serious medi-
cal needs. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976). Deliberate indifference by the government to such medical needs
thus violates the [c]onstitution. [Id., 104–105.]’’ Hilton v. Wright, 673 F.3d
120, 127 (2d Cir. 2012).
17
According to the department’s ‘‘Frequently Asked Questions’’ document
pertaining to the nursing home project, the state would be receiving ‘‘over
$5.5 million in federal Medicaid reimbursement annually.’’
18
The start-up contract provides that reimbursable expenses must be
‘‘consistent with the Office of Policy and Management Cost Standards,’’
which are applicable to ‘‘all new contracts effective on or after January 1,
2007.’’ Those standards, which are available on the Office of Policy and
Management’s website, indicate that they apply to any ‘‘contract between
a [s]tate agency and an organization for the purchase of ongoing direct
health and human services to agency clients.’’ State of Connecticut, Office
of Policy and Management, Cost Standards (September 1, 2006), p. 6, avail-
able at http//www.ct.gov/opm/lib/opm/POS_Cost_Standards_1-14-14.pdf
(last visited December 16, 2014). The standards indicate further that, to be
allowable, costs subject thereto must be, inter alia, ‘‘reasonable for the
performance of the [contract],’’ as defined therein, in conformance with
identified limitations and exclusions and ‘‘[b]e adequately documented . . .
by invoices, cancelled checks, wire transfers, or other forms of documenta-
tion evidencing a disbursement and substantiating that a cost was incurred
by the organization during the period of the [contract].’’ Id., p. 8. In short,
because these cost standards and the accompanying documentation require-
ments apparently are widely used in state contracts for health and human
services, their presence in the defendants’ contract does not weigh in favor
of a finding that they are an arm of the state due to especially close budget-
ary monitoring.
19
Again, there is no operations contract in evidence. The department’s
request for proposals, for its part, set only general parameters for the opera-
tion of the nursing home and invited ‘‘innovative submissions’’ from bidders.
20
When legislation authorizes a state entity either to perform a service
itself or to contract for its performance by a private party, and the state
chooses the latter option, courts should acknowledge the statutory distinc-
tion and conclude that the choice to contract for services weighs against a
determination that the private party is an arm of the state. See, e.g., Rosario
v. American Corrective Counseling Services, Inc., 506 F.3d 1039, 1041,
1044–45 (11th Cir. 2007). In the present matter, the trial court made a
contrary observation, namely, that ‘‘[t]he state’s statutory option to provide
[nursing home] services directly rather than contract for them supports the
notion that a private entity providing those services is working as an arm
of the state.’’
21
The defendants, for their part, appear to have understood and accepted
the state’s expectations. In its response to the request for proposals, iCare
represented that it was ‘‘considering the purchase of a presently vacant
and appropriately zoned’’ nursing home facility for the project. It indicated
further that the proposed facility would provide ‘‘a substantial real estate
tax base for the local municipality’’ in which the facility was located. Addi-
tionally, the defendants’ counsel contacted the plaintiff to attempt to verify
that the property already was properly zoned.
22
Almost all of the federal Circuit Courts of Appeals ‘‘have denied state
sovereign immunity to private entities, more or less categorically.’’ Del
Campo v. Kennedy, supra, 517 F.3d 1079.
23
Because we agree with the plaintiff’s claim that the trial court’s preemp-
tion analysis was faulty, we need not address its alternative arguments that
the analysis constituted dicta or that the court improperly decided the
preemption issue in the context of a motion to dismiss.
24
Again, the evidence presented in the present case demonstrated that
the department fully expected the defendants to comply with the zoning
regulations. This provides further support for our conclusion that those
regulations are not preempted by § 17b-372a. See Helicopter Associates,
Inc. v. Stamford, 201 Conn. 700, 710–11, 519 A.2d 49 (1986) (relying, in part,
on agency officials’ actions and statements evidencing intent that licensee
comply with zoning regulations to conclude that statutes, pursuant to which
license was granted, did not preempt zoning regulations).