Aldin Associates Ltd. Partnership v. State

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Aldin Associates Ltd. Partnership v. State

ALDIN ASSOCIATES LIMITED PARTNERSHIP v.
STATE OF CONNECTICUT ET AL.
(AC 46504)
Bright, C. J., and Seeley and Bishop, Js.

Syllabus

The plaintiff appealed from the judgment of the trial court denying its request
for a writ of mandamus to compel the defendants, the state of Connecticut
and the Commissioner of Energy and Environmental Protection, to make
payment on the plaintiff’s claims under the act (§ 22a-449a et seq.) establish-
ing an underground storage tank petroleum cleanup fund. The plaintiff
claimed, inter alia, that the court improperly failed to shift the burden of
proof to the defendants. Held:

The trial court did not exceed the scope of this court’s remand in the
plaintiff’s prior appeal, Aldin Associates Ltd. Partnership v. State (209
Conn. App. 741), when it held the plaintiff to its burden of establishing its
entitlement to a writ of mandamus.

The trial court did not abuse its discretion in denying the plaintiff’s request
for a writ of mandamus directing the defendants to pay the plaintiff’s
approved claims under the act, the plaintiff having failed to demonstrate
the existence of a clear legal right to be paid what it claims is due and
owing from the commissioner under the act.

This court declined the plaintiff’s request to impose onto the act a burden
shifting requirement for the defendants to establish the existence of any
pending claims in the program after the plaintiff has made an initial showing
that there were sufficient funds in the program to pay its claims, as the
plaintiff failed to make such an initial showing regarding sufficient funds,
the plaintiff did not point to any authority or legislative history of the
statutory scheme that would support the imposition of a burden shifting
requirement onto the act, and sanctioning such burden shifting would clearly
expand the writ of mandamus beyond its well established limits.

(One judge concurring in part and dissenting in part)
Argued October 17, 2024—officially released January 21, 2025

Procedural History

Action seeking a writ of mandamus to compel the
defendants to adjudicate and make payment on the
plaintiff’s claims in connection with the state’s under-
ground storage tank petroleum cleanup program, and
for other relief, brought to the Superior Court in the
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Aldin Associates Ltd. Partnership v. State

judicial district of Hartford, where the court, Hon.
Robert B. Shapiro, judge trial referee, granted the defen-
dants’ motion to dismiss and rendered judgment
thereon; thereafter, the plaintiff appealed to this court,
Bright, C. J., and Moll and Harper, Js., which reversed
in part the trial court’s judgment and remanded the
case to the trial court for further proceedings; subse-
quently, the plaintiff withdrew the portion of its applica-
tion seeking to compel the defendants to adjudicate its
claims, and the court, Sicilian, J., rendered judgment
for the defendants on the remaining portion of the plain-
tiff’s complaint, from which the plaintiff appealed to
this court. Affirmed.
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (plaintiff).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellees (defendants).
Opinion

SEELEY, J. The plaintiff, Aldin Associates Limited
Partnership, which owns and operates gas stations
where underground storage tanks for petroleum have
been used, appeals from the judgment rendered by the
trial court denying its request for a writ of mandamus
against the defendants, the state of Connecticut and
Katie Dykes, the Commissioner of Energy and Environ-
mental Protection (commissioner), directing them to
request the state comptroller (comptroller) to pay the
plaintiff’s approved applications that were submitted
pursuant to an underground storage tank petroleum
clean-up program administered by the defendants. On
appeal, the plaintiff claims that the court improperly
(1) denied its request for a writ of mandamus and (2)
failed to shift the burden of proof to the defendants.
We disagree with both claims and affirm the judgment
of the court.
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The following facts and procedural history were set
forth by this court in a prior appeal in this matter or
are undisputed in the record. ‘‘In 1989, the General
Assembly enacted legislation titled ‘An Act Concerning
Underground Storage Tanks’ (act), which established
the underground storage tank petroleum clean-up fund
(fund). See Public Acts 1989, No. 89-373 (P.A. 89-373),
codified as amended at General Statutes (Rev. to 1991)
§ 22a-449a et seq. Initially, the act provided that the
fund shall be credited one third of the tax imposed
on gross earnings derived from the sale of petroleum
products under General Statutes § 12-587 and that the
fund is to be used by the commissioner to reimburse
responsible parties for costs incurred in remediating
leaking underground storage tanks.1 See P.A. 89-373,
§§ 3, 4 and 10. A responsible party could apply to the
clean-up fund review board (board) for reimbursement
from the fund. See P.A. 89-373, §§ 7 and 10.
‘‘The act was amended several times during the years
following its enactment in 1989. In 1994, the legislature
replaced the fund with the underground storage tank
petroleum clean-up account (account). See Public Acts
1994, No. 94-130, § 6. In 2009, the General Assembly
repealed General Statutes § 22a-449b, which required
that a portion of tax revenue collected under § 12-587
be deposited in the account, and replaced the account
with the underground storage tank petroleum clean-up
program (program) to reimburse responsible parties
1
‘‘A responsible party is ‘any person who . . . at any time owns, leases,
uses or has an interest in the real property on which an underground storage
tank system is or was located from which there is or has been a release
or suspected release, regardless of when the release or suspected release
occurred, or whether such person owned, leased, used or had an interest
in the real property at the time the release or suspected release occurred,
or whether such person owned, operated, leased or used the underground
storage tank system from which the release or suspected release occurred
. . . .’ General Statutes § 22a-449a (3) (B).’’ Aldin Associates Ltd. Partner-
ship v. State, 209 Conn. App. 741, 744 n.1, 269 A.3d 790 (2022).
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Aldin Associates Ltd. Partnership v. State

‘within available appropriations . . . .’ Public Acts,
Spec. Sess., June, 2009, No. 09-3, §§ 423 and 513, codi-
fied at General Statutes (Supp. 2010) § 22a-449c.
‘‘In 2012, the General Assembly replaced the board
with the commissioner and cancelled the program. See
Public Acts, Spec. Sess., June, 2012, No. 12-1, §§ 252
and 262, codified at General Statutes §§ 22a-449c and
22a-449s. General Statutes § 22a-449t established dead-
lines for applicants to apply for reimbursement under
the program based on the applicant’s status as a munici-
pal, small station, mid-size station, large station, or
other applicant. Section 261 of Public Act 12-1, which
was codified at General Statutes (Rev. to 2013) § 22a-
449r, established a reverse auction system. This system
was applicable ‘to all applications submitted by mid-
size or large station applicants before, on or after June
15, 2012, including, but not limited to, applications for
which payment or reimbursement has been ordered by
the commissioner but has not been made. . . .’ General
Statutes § 22a-449r (c) (2).’’2 (Footnote in original.)
Aldin Associates Ltd. Partnership v. State, 209 Conn.
App. 741, 744–45, 269 A.3d 790 (2022) (Aldin I).
When the legislature cancelled the program in 2012
and indicated that no more applications would be
accepted after October 1, 2014, it also changed how the
program was funded. The program would no longer be
funded by a tax; rather, the legislature authorized the
issuance of bonds in the total aggregate amount of
$36 million for the purpose of providing payment or
reimbursement ordered by the commissioner pursuant
to the program. See General Statutes § 22a-449u. The
$36 million in bond funds were divided equally, with
2
In light of the language in § 22a-449r making it applicable to ‘‘all applica-
tions submitted . . . before, on or after June 15, 2012’’; General Statutes
§ 22a-449r (c) (2); the plaintiff’s mandamus claim is governed by the current
version of the act. See Aldin Associates Ltd. Partnership v. State, 209 Conn.
App. 741, 766 n.5, 269 A.3d 790 (2022).
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Aldin Associates Ltd. Partnership v. State

$9 million allocated to each of the four categories of
applicants. In addition to the change in funding for the
program, the legislature also implemented a reverse
auction system, which was a new system for how pay-
ments to applicants in categories three and four for
mid-size and large stations would be prioritized. ‘‘Under
the reverse auction system, ‘priority for payment or
reimbursement shall be given to those applicants who
. . . agree to accept the greatest reduction in the
amount ordered for payment or reimbursement by the
commissioner under the program . . . .’ General Stat-
utes § 22a-449r (c) (4). Section 22a-449r (c) (2) (A)
provides in relevant part: ‘In the fiscal year beginning
July 1, 2012, no payment shall be made to mid-size
station applicants in excess of thirty-five cents on each
dollar the commissioner orders to be paid or reim-
bursed under the program. In the fiscal year beginning
July 1, 2013, and each fiscal year thereafter, such
amount shall increase by ten cents on each dollar per
fiscal year and in such years no payment or reimburse-
ment shall be made in excess of the amount in effect
for such fiscal year. . . .’
‘‘The plaintiff owns and operates more than five gaso-
line facilities where underground storage tanks used
for petroleum products are located and, therefore, is a
responsible party and a mid-size station applicant under
the act.3 The plaintiff remediated some of its properties
pursuant to the act and submitted several applications
to the Department of Energy and Environmental Protec-
tion [(department)] seeking reimbursement for the
costs it incurred. At the time the plaintiff commenced
‘‘General Statutes § 22a-449a (10) defines ‘‘ ‘[m]id-size station applicant’’’
3

as ‘an applicant who owned, operated, leased, used, or had an interest in,
at the time such applicant’s first application was received by the underground
storage tank petroleum clean-up program, six to ninety-nine separate parcels
of real property, within or outside of the state, on which an underground
storage tank system was or had been previously located . . . .’ ’’ Aldin
Associates Ltd. Partnership v. State, supra, 209 Conn. App. 746 n.2.
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this action, some of the plaintiff’s applications had been
approved and paid, at least one application had been
approved in 2009 but remained unpaid, and the commis-
sioner had failed to act on the plaintiff’s remaining
applications.
‘‘In 2019, the plaintiff brought this action against the
defendants, claiming that the commissioner has unduly
and unreasonably delayed the processing and payment
of its applications for reimbursement under the pro-
gram.’’ (Footnote in original.) Aldin Associates Ltd.
Partnership v. State, supra, 209 Conn. App. 745–46.
In this action, the plaintiff initially sought a writ of
mandamus ordering the commissioner ‘‘ ‘to pay approved
claims and to adjudicate those pending claims [that]
have not been adjudicated.’ ’’ Id., 746. The plaintiff also
sought monetary damages on the basis of its allegations
that the commissioner ‘‘failed to reimburse it and failed
to administer the program within a reasonably timely
manner as required by the act . . . violated the equal
protection clause under article first, § 20, of the Con-
necticut constitution . . . violated the due process
clause under article first, § 10, of the Connecticut con-
stitution . . . [and] violated the takings clause of arti-
cle first, § 11, of the Connecticut constitution.’’ Id., 746–
47.
The defendants filed a motion to dismiss the action
for lack of subject matter jurisdiction, asserting that
the plaintiff’s claims were barred by sovereign immu-
nity. Id., 747. Following a hearing, the trial court granted
the defendants’ motion to dismiss as to all counts, and
the plaintiff appealed to this court, which affirmed the
judgment in part as to the dismissal, on the ground of
sovereign immunity, of all counts except for count one
seeking a writ of mandamus. With respect to the manda-
mus count, this court concluded that it was not barred
by sovereign immunity and remanded the case for fur-
ther proceedings on that count. Id., 743–44, 779.
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Following our remand, the plaintiff filed a single
count, amended complaint seeking a writ of mandamus
‘‘ordering the commissioner to request the [comptrol-
ler] to make payments for [the plaintiff’s] approved
claims . . . .’’4 In its amended complaint, the plaintiff
alleges that, in response to the legislation encouraging
those responsible for facilities with underground stor-
age tanks to identify and remediate all such facilities,
‘‘[t]he plaintiff engaged in an aggressive program to
identify its applicable facilities, proceed[ed] with reme-
diation of such facilities, and filed applications for reim-
bursement of the costs for such remediation pursuant
to the statute. At least one of the unpaid applications
was approved as early as 2009 in the amount of
$532,443.34, yet has not been paid. . . . Recently, all
of the plaintiff’s applications have been processed and
approved for payment in the amount of $1,720,880.56;
therefore, there remains $2,253,323.96 due and owing.’’
The plaintiff further alleges in its amended complaint
that the defendants have unduly and unreasonably
delayed processing applications and making payments
for approved ones, including those of the plaintiff,
which, in response to the state’s changes to the program
in 2012, elected a 95 percent reimbursement rate.
A trial on the mandamus count was held before the
court on February 15, 2023. Paula McDowell, an
employee of the department to whom the commissioner
had delegated authority to approve applications under
the program, was the only witness who testified. The
plaintiff submitted as full exhibits documentary evi-
dence concerning the amount of money in the fund, as
well as the status of unpaid or unapproved applications.
The parties also submitted pretrial and posttrial briefs.
4
After this court’s decision in Aldin I, the commissioner approved the
plaintiff’s remaining applications for reimbursement in the amount of
$2,253,323.96. Consequently, the plaintiff’s amended complaint removed the
request for a writ of mandamus ordering the commissioner to adjudicate
its pending claims.
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McDowell testified that she is the person who cur-
rently reviews applications and decides whether an
application should be approved. The plaintiff’s counsel
questioned her extensively regarding the plaintiff’s
exhibit one, a document she had produced outlining
the status of outstanding applications and available
funds for the program. For each category of claimants,
the document shows the number of existing claims that
are deemed new, supplemental, tabled, or awarded but
not paid, and for each of those types of claims, it shows
the total dollar amount.5 When asked about a number
5
Specifically, for the first category, ‘‘municipalities and other applicants,’’
there are no new claims, there are four supplemental claims totaling
$137,260.59, there is one tabled claim in the amount of $21,984.97, and there
are no awarded but not paid claims. With respect to the tabled claim,
McDowell testified that it was a clerical error and that the claim should
not have been listed. Thus, taking that into account, the total amount of
outstanding claims for municipalities and other applicants is $137,260.59,
as opposed to the $159,245.56 reflected on the document. For the second
category, ‘‘small station owners,’’ there are two new claims totaling
$18,872.32, two supplemental claims totaling $46,674.82, thirteen tabled
claims totaling $543,349.06, and two awarded but not paid claims totaling
$12,855.46. The total amount of outstanding claims for small station owners
is $621,751.66. As for the third category, ‘‘mid-size station owners,’’ there
are no new claims, fourteen supplemental claims totaling $577,041.30, five
awarded but not paid claims totaling $552,114.54, and six tabled claims
totaling $458,047.10, with a notation stating: ‘‘Alliance [Energy] claim for
$342,163.16 has a reduce[d] ele[c]tion for [thirty-five] cents.’’ The document
lists the total amount of outstanding claims for mid-size station owners as
$1,587,202.94, which, we note, is less than the $2,253,323.96 in approved
claims for which the plaintiff is seeking payment. Finally, as for the fourth
category, ‘‘large station owners,’’ there are 51 new claims totaling
$6,378,146.93, 1149 supplemental claims totaling $52,841,691.31, 87 tabled
claims totaling $1,663,028.92, and 234 awarded but not paid claims totaling
$3,194,687.31. The total amount of outstanding claims for large station own-
ers is $64,077,554.47. In all, pursuant to exhibit one, there are 1570 claims
across the categories seeking reimbursement from the fund, totaling more
than $66 million.
The plaintiff also submitted into evidence exhibit eight, which McDowell
had provided to the plaintiff as an update to the status of the various claims.
Exhibit eight, however, does not include ‘‘awarded but not paid’’ claims,
which McDowell testified were mistakenly omitted from the document.
After accounting for that omission, there are no substantial differences
between the amounts in the two documents. For municipalities and other
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Aldin Associates Ltd. Partnership v. State

of the claims in the various categories, McDowell
acknowledged that no action has been taken on many
of them in the past ten years and that she has not
done anything to follow up on any of the tabled or
supplemental applications or to pursue any missing doc-
umentation in order to resolve any of those claims. She
also testified that no other station owners in the various
categories have brought an action seeking to recover
on any of the outstanding applications and that there
has been no action taken, other than by the plaintiff,
in category three with respect to any of the outstanding
applications. When asked whether there are ‘‘any other
applicants in mid-size [category three] that have
approved claims that weren’t paid, with the exception
of [a claim by a company called Alliance Energy],’’ she
responded: ‘‘Yes, there’s some claims that have bank-
ruptcy issues that were awarded but not paid.’’ She
also testified regarding a number of claims by various
companies for which ‘‘insurance issues’’ were noted,
acknowledging that those issues have not been
resolved.
At one point during the direct examination of McDow-
ell, the plaintiff’s counsel asked: ‘‘As of today, even
though there’s approximately $2.7 million available, you
have not instructed the comptroller to pay [the plain-
tiff’s] approved claims, correct?’’ McDowell responded
that that was correct, and when asked further if she
had any intention of doing so ‘‘unless the court orders
it,’’ she replied, ‘‘[t]here’s no money available to pay
them.’’ On cross-examination, she testified that the total
applicants, after accounting for the previously mentioned clerical error as
reflected in exhibit one, the amount for one tabled application is now
$107,668.09. For small and mid-size station owners, the amounts have not
changed. There is a new notation, however, stating: ‘‘[The plaintiff’s] pending
approved claims to be paid of $1,907,074.73 has a reduction of [ninety-five]
cents.’’ As for large station owners, there is one fewer tabled application,
which reduced the total amount by $107,688.09. There still remains more
than $65 million in outstanding claims.
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amount of unpaid claims is more than $65 million. She
further testified that the plaintiff is not first in line to
be paid for mid-size station owners, which category has
only $4310 remaining in the account for that category.
After the conclusion of the trial, the court issued a
memorandum of decision in which it denied the plain-
tiff’s request for a writ of mandamus. On the basis of
the evidence presented, the court made the following
findings. ‘‘The plaintiff [a mid-size applicant under the
act] made multiple claims for reimbursement from the
[fund] and received reimbursement for many such
claims. The plaintiff made, and the commissioner
approved, additional claims for reimbursement totaling
$2,253,323.96. Those approved claims have not been
paid.
‘‘The total amount remaining in the [fund] is
$2,750,953. That amount is allocated among the four
categories of applicants established by the act as fol-
lows: $445,734.35 is allocated for municipal and other
applicants; $1,853,003.[3]8 is allocated for large appli-
cants; $447,904.69 is allocated for small applicants;
[and] $4310.58 is allocated for mid-size applicants.
‘‘Numerous claims, made by claimants other than
the plaintiff, remain pending before the commissioner
unadjudicated, tabled, or approved but not paid. The
total of all such claims vastly exceeds the total amount
remaining in the [fund].
‘‘During 2019, [McDowell], an employee of [the
department] to whom the commissioner has delegated
substantial discretion to manage the processing and
disposition of claims under the act, made the discretion-
ary decision to reallocate funds from other categories
into the mid-size category so that some approved claims
of the plaintiff could be paid.6 That reallocation was
6
Specifically, McDowell testified that, in 2019, in her discretion she moved
a little more than $7 million to the mid-size category specifically to pay
many of the plaintiff’s claims, which resulted in a payment to the plaintiff
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Aldin Associates Ltd. Partnership v. State

made notwithstanding that there were pending claims
in at least some of the categories from which funds
were taken that exceeded the amounts then allocated
to those categories.
‘‘Other than reallocating funds and paying some of
the plaintiff’s claims in 2019, the [commissioner] has
taken little or no action to process, resolve or pay out-
standing claims for more than ten years. None of the
applicants, other than the plaintiff, has taken any action
to pursue its applications or payment of its approved
claims.’’ (Footnote added; footnotes omitted.) The
court also noted that it was unclear from the record
‘‘the extent to which the commissioner has taken any
action at all to process claims, other than the plaintiff’s
claims, in the past ten years. McDowell, who has had
responsibilities for the program since the program’s
inception, answered ‘yes’ when asked whether there
had been processing to finalize claims in the large sta-
tion category over the last ten years. Counsel did not
inquire further and so there is no evidence that more
completely explains McDowell’s affirmative answer. In
response to other questions, McDowell confirmed that
. . . little or nothing [has been done] to process or
resolve outstanding applications and claims. For exam-
ple, she indicated that . . . nothing [has been done] to
follow up on applications that were tabled, or supple-
mental claims that were filed, in 2012 or earlier, nothing
of $11 million. At oral argument before this court, the defendants’ counsel
explained that, prior to our decision in Aldin I, the commissioner believed
that she had discretion to manage the fund and to move funds between
categories, despite the statutory language establishing the order in which
claims must be paid. Counsel also acknowledged, however, that in light of
this court’s decision in Aldin I, no such discretion to manage the fund exists.
As a result of that payment in 2019, the plaintiff ultimately received $2
million more than the $9 million designated for mid-size station owners. In
all, the plaintiff has filed 435 applications for reimbursement from the fund,
of which 413 have been paid. In fact, the plaintiff has been paid $19 million
in total from the fund to date and is the single largest payee of the fund
since its closure.
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[has been done] to pursue claims that were affected by
the bankruptcy of claimants that occurred some ten
years ago or more, and nothing [has been done] to
resolve what McDowell described as ‘insurance issues’
relating to claims that date back more than ten years.’’
The court next addressed the parties’ disagreement
as to the scope of the remand from this court: ‘‘[T]he
plaintiff argue[d] that the only issue for [the] court to
determine [was] whether there are available funds to
pay the plaintiff’s approved claims,’’ while ‘‘the defen-
dants contend[ed] that the remand leaves open for
determination more issues than just the availability of
funds to pay approved claims . . . .’’ It concluded that,
even under ‘‘the plaintiff’s narrow interpretation of the
remand order, the plaintiff ha[d] failed to establish enti-
tlement to a writ of mandamus ordering the commis-
sioner to request the comptroller to pay the plaintiff’s
approved claims.’’ In reaching that determination, the
court noted the plaintiff’s reliance on § 22a-449r (a) (1),
which allows for available funds to be divided among
the four categories of claimants and provides in relevant
part: ‘‘If at any time there is an amount remaining in
one such category and if in such category there are no
pending applications or applications for which payment
or reimbursement has been ordered by the commis-
sioner but has not been made . . . then such amount
shall be redistributed for payment or reimbursement in
the following order of priority . . . .’’ The court then
stated: ‘‘The amount currently allocated to the mid-size
category in which the plaintiff belongs is only $4310.58.
The plaintiff acknowledges that, to pay the plaintiff’s
approved claims, the commissioner would have to move
funds from other categories into the mid-size category.
The evidence makes clear, and the court finds, that
there are tens of millions of dollars in applications in
some state of processing, including claims approved but
unpaid, pending before the commissioner. The evidence
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Aldin Associates Ltd. Partnership v. State

also demonstrates, and the court finds, that the plain-
tiff’s claims are not first in line for payment under the
‘reverse auction’ protocol established for the mid-size
category under the statute. The plaintiff’s claim that
there are available funds to pay its approved claims
therefore rests on the proposition that, because the
commissioner has dragged her feet in processing and
resolving claims, and because other claimants have not
pursued legal actions compelling the commissioner to
act, all of the claims except those of the plaintiff must
be deemed abandoned and no longer pending such that
the commissioner is obligated to reallocate all the avail-
able funds to the mid-size category and to pay the plain-
tiff’s claims, which, according to the plaintiff’s theory,
are the only pending claims.
‘‘Accepting the plaintiff’s theory would impermissibly
extend mandamus beyond its well established limits.
See Wozniak v. Colchester, 193 Conn. App. 842, 855,
220 A.3d 132, cert. denied, 334 Conn. 906, 220 A.3d 37
(2019). The plaintiff has not demonstrated that it has
a complete and immediate right to be paid. See Stewart
v. Watertown, 303 Conn. 699, 711, 38 A.3d 72 (2012).
Rather, to succeed, the plaintiff requires the court to
determine that its claims take priority over all other
claims simply because the plaintiff has pursued legal
action while other claimants have not. . . .
‘‘The plaintiff fairly characterizes the commissioner’s
failure for more than ten years to take any significant
step to administer the program in conformance with
her statutory obligations as making a mockery of the
program. To be sure, the Appellate Court’s decision in
[Aldin I] makes clear that the fact that the act does
not impose a duty to pay approved applications within
a specific time period does not relieve the commissioner
of her mandatory duty to pay approved claims ‘if . . .
there are funds available . . . .’ [Aldin Associates Ltd.
Partnership v. State, supra, 209 Conn. App. 771–72]. A
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demand for a writ of mandamus ordering the commis-
sioner to pay approved claims in accordance with the
priorities and requirements established by the applica-
ble statutes may well be appropriate on the record in
this case. But that is not what the plaintiff seeks, per-
haps because, if all pending claims were processed and
paid in accordance with the act, it appears that the
available funds would be largely, if not entirely,
exhausted by payments to other claimants.’’ The court
therefore determined that the plaintiff did not meet its
burden of demonstrating that it was entitled to a writ
of mandamus ordering the commissioner to request the
comptroller to pay the plaintiff’s approved but unpaid
claims and rendered judgment in favor of the defen-
dants. This appeal followed.
I
Before we address the merits of the claims raised in
this appeal, we briefly address the scope of our remand
in Aldin I. In its principal appellate brief, the plaintiff
asserts: ‘‘A claim for mandamus would generally require
a court to determine whether the defendants have a
mandatory, not discretionary, duty and whether the
plaintiff has a clear legal right to have such duty per-
formed. . . . Here, however, the Appellate Court
already determined the scope of the defendants’ duty
in the prior appeal in this action, and the Appellate
Court’s decision controlled the scope of the proceed-
ings before the trial court on remand . . . .’’ (Citation
omitted.) The plaintiff, citing case law for the general
principle that a ‘‘trial court cannot adjudicate rights and
duties not within the scope of the remand’’; (internal
quotation marks omitted) Jepsen v. Camassar, 196
Conn. App. 97, 106, 228 A.3d 376, cert. denied, 335 Conn.
926, 234 A.3d 980 (2020); argues that, because this court
‘‘has already concluded that the defendants have a man-
datory duty to pay the plaintiff’s approved claims if
there are available funds . . . the sole issue for the
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trial court on remand was whether there were available
funds in the [program] to pay the plaintiff.’’ (Emphasis
in original.) Thus, the plaintiff, in essence, is arguing
that the trial court exceeded the scope of our remand
in Aldin I when it determined that the plaintiff did not
meet its burden of demonstrating that it was entitled
to a writ of mandamus ordering the commissioner to
request the comptroller to pay the plaintiff’s approved
but unpaid claims. We do not agree.
At issue in Aldin I was whether the trial court prop-
erly determined that, inter alia, the plaintiff’s mandamus
claim was barred by sovereign immunity. See Aldin
Associates Ltd. Partnership v. State, supra, 209 Conn.
App. 741. In reaching that conclusion, the trial court
‘‘determined that the plaintiff’s request to compel the
commissioner to adjudicate all pending applications
satisfied the exception to sovereign immunity for
actions by state officers in excess of their statutory
authority. The court reasoned that [General Statutes]
§ 22a-449f (h) imposes a mandatory duty on the com-
missioner to ‘render a decision as to whether . . . to
order payment or reimbursement from the program not
more than ninety days after receipt of an application
. . . .’ General Statutes § 22a-449f (h). The court, how-
ever, determined that the request to compel the com-
missioner to pay the plaintiff’s approved 2009 applica-
tion [was] barred by sovereign immunity because the
act does not impose a duty on the commissioner to pay
approved applications within a specific time frame. The
court concluded that, although a portion of the first
count is not barred by sovereign immunity, the plain-
tiff’s requests for mandamus ‘must rise and fall
together.’ Accordingly, the court dismissed the first
count in its entirety.’’ Aldin Associates Ltd. Partnership
v. State, supra, 748.
On appeal, this court agreed with the trial court’s
determination that sovereign immunity did not bar the
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plaintiff’s claim that ‘‘the defendants’ failure to act on
its pending applications constituted actions in excess
of the defendants’ statutory authority.’’ Id., 763. We
disagreed, however, with the court’s conclusion that,
‘‘because the act does not impose a duty to pay
approved applications within a specific time period, the
defendants’ failure to reimburse the plaintiff is not an
act in excess of their statutory authority.’’ Id., 766. We
concluded that ‘‘the relevant statutes are plain and
unambiguous and create a mandatory duty to pay
approved applications pursuant to the act.’’ Id., 771. As
we stated in Aldin I: ‘‘We . . . conclude that the court
improperly determined that, in the absence of any
requirement that the payment be made in a specific
time period, the defendants’ failure to do so could not
be an act in excess of statutory authority. The act
requires that approved applications for reimbursement
be paid if certain conditions are met. General Statutes
§ 22a-449f (c). If those conditions are met, the fact that
the statute does not specify a specific time period within
which payment must be made does not affect the man-
datory nature of the duty to pay. Indeed, § 22a-449r (a)
(1) expressly provides that any amount available for
purposes of paying applicants under the underground
storage tank clean-up program shall be distributed
. . . . Thus, if, as the plaintiff alleges, there are funds
available for purposes of paying the plaintiff, the act
imposes a mandatory duty on the defendants to pay
the plaintiff. Accordingly, the first count of the plaintiff’s
complaint seeking a writ of mandamus ordering the
defendants to pay its approved application is not barred
by sovereign immunity.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 771–72. Our rescript in
Aldin I remanded the case ‘‘for further proceedings’’
on the mandamus count of the plaintiff’s complaint.
Id., 779.
Because the trial court had dismissed the mandamus
count on jurisdictional grounds, it never addressed the
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merits of the claim. This court simply determined that
the court had jurisdiction over the mandamus count.
Thus, our remand for further proceedings on that count
necessarily was a remand for the mandamus claim to
be considered on its merits. Even though this court
concluded in Aldin I that the defendants have a manda-
tory duty to pay the plaintiff’s claims under the statute
as long as ‘‘certain conditions are met’’ and if ‘‘there
are funds available for purposes of paying the plaintiff’’;
id., 771–72; on remand the plaintiff still had to demon-
strate its entitlement to the remedy of a writ of manda-
mus directing the defendants to pay its claims. We con-
clude, therefore, that the court did not exceed the scope
of our remand in Aldin I when it held the plaintiff to
its burden of establishing its entitlement to a writ of
mandamus. We now turn to the merits of the plaintiff’s
claims on appeal.
II
The plaintiff first claims that the court improperly
concluded that it is not entitled to a writ of mandamus
directing the defendants to pay the plaintiff’s approved
claims under the program. We disagree.
We first set forth the well settled requirements for
the issuance of a writ of mandamus and our standard
of review. See AvalonBay Communities, Inc. v. Sewer
Commission, 270 Conn. 409, 416–17, 853 A.2d 497
(2004). ‘‘[T]he writ of mandamus is an extraordinary
remedy to be applied only under exceptional condi-
tions, and is not to be extended beyond its well-estab-
lished limits.’’ (Internal quotation marks omitted.) Hen-
nessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122
(1990). ‘‘[M]andamus neither gives nor defines rights
which one does not already have. It enforces, it com-
mands, performance of a duty. It acts at the instance
of one having a complete and immediate legal right; it
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cannot and it does not act upon a doubtful or a con-
tested right . . . . Accordingly, [a] party seeking a writ
of mandamus must establish: (1) that the plaintiff has
a clear legal right to the performance of a duty by the
defendant; (2) that the defendant has no discretion with
respect to the performance of that duty; and (3) that
the plaintiff has no adequate remedy at law.’’ (Citation
omitted; internal quotation marks omitted.) Wozniak v.
Colchester, supra, 193 Conn. App. 855–56. ‘‘Even satis-
faction of this demanding test does not, however, auto-
matically compel issuance of the requested writ of man-
damus. . . . In deciding the propriety of a writ of
mandamus, the trial court exercises discretion rooted
in the principles of equity.’’ (Citation omitted.) Hennes-
sey v. Bridgeport, supra, 659. ‘‘It is fundamental that
the issuance of the writ rests in the discretion of the
court, not an arbitrary discretion exercised as a result of
caprice but a sound discretion exercised in accordance
with recognized principles of law. . . . That discretion
will be exercised in favor of issuing the writ only where
the plaintiff has a clear legal right to have done that
which he seeks.’’ (Internal quotation marks omitted.)
Cooke v. Commissioner of Correction, 194 Conn. App.
807, 827, 222 A.3d 1000 (2019), cert. denied, 335 Conn.
911, 228 A.3d 1041 (2020).
In the present case, the plaintiff’s claim for a writ of
mandamus is grounded in the statutory scheme govern-
ing the underground storage tank petroleum clean-up
program. Consequently, for this court to determine
whether the plaintiff established a clear legal right to
have its applications paid by the commissioner, we must
examine the governing statutes and the requirements
for the program set forth therein. ‘‘The construction of
a statute is a question of law subject to de novo review.
See C. R. Klewin Northeast, LLC v. Fleming, [284 Conn.
250, 260, 932 A.2d 1053 (2007)]. When construing a
statute, [o]ur fundamental objective is to ascertain and
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give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Internal quotation marks
omitted.) Aldin Associates Ltd. Partnership v. State,
supra, 209 Conn. App. 767.
Therefore, to the extent we must examine the statu-
tory language to determine whether the plaintiff has
a clear legal right to payment, our review is plenary.
Ultimately, however, we ‘‘review the trial court’s deci-
sion . . . to determine whether it abused its discretion
in denying the writ.’’ AvalonBay Communities, Inc. v.
Sewer Commission, supra, 270 Conn. 417.
We now turn to the language of the relevant statutes,
which this court set forth in Aldin I. ‘‘Section 22a-449c
(a) (2) provides in relevant part that ‘[t]he program
shall provide money for reimbursement or payment
pursuant to this section . . . within available appropri-
ations, to responsible parties . . . .’ Section 22a-449f
(c) provides in relevant part that ‘[t]he commissioner
shall order reimbursement or payment from the pro-
gram for any cost paid or incurred, as the case may be,
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[if all of the conditions for reimbursement are satisfied]
. . . .’ . . . In the event that an applicant files an
administrative appeal from the commissioner’s decision
pursuant to § 22a-449g, ‘any portion of the ordered reim-
bursement or payment that is approved and not the
subject of such appeal, shall be paid by the commis-
sioner, within available appropriations and subject to
the provisions of section 22a-449r, notwithstanding the
pendency of the appeal.’ . . . General Statutes
§ 22a-449g.
‘‘Section 22a-449r (a) (1) establishes the order of pri-
ority for payments from the program and directs that
‘any amount available for purposes of paying applicants
under the underground storage tank clean-up program
shall be distributed as follows: (A) [o]ne-quarter for
payment or reimbursement to municipal applicants and
other applicants; (B) one-quarter for payment or reim-
bursement to small station applicants; (C) one-quarter
for payment or reimbursement to mid-size station appli-
cants; and (D) one-quarter for payment or reimburse-
ment to large station applicants. If at any time there is
an amount remaining in one such category and if in
such category there are no pending applications or
applications for which payment or reimbursement has
been ordered by the commissioner but has not been
made . . . then such amount shall be redistributed for
payment or reimbursement in the following order of
priority: (i) [f]irst to municipal applicants and other
applicants, (ii) if after redistribution pursuant to sub-
clause (i) of this subdivision there is an amount
remaining, then to small station applicants, (iii) if after
redistribution pursuant to subclauses (i) and (ii) of this
subdivision there is an amount remaining, then to mid-
size station applicants, and (iv) if after redistribution
pursuant to subclauses (i), (ii) and (iii) of this subdivi-
sion there is an amount remaining, then to large station
applicants.’ . . .
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‘‘Section 22a-449r (c) (2) (A) provides in relevant part:
‘In the fiscal year beginning July 1, 2012, no payment
shall be made to mid-size station applicants in excess
of thirty-five cents on each dollar the commissioner
orders to be paid or reimbursed under the program. In
the fiscal year beginning July 1, 2013, and each fiscal
year thereafter, such amount shall increase by ten cents
on each dollar per fiscal year and in such years no
payment or reimbursement shall be made in excess of
the amount in effect for such fiscal year. After such
amount reaches one dollar, it shall no longer
increase. . . .’
‘‘Section 22a-449r (c) (4) provides in relevant part:
‘Among mid-size station applicants . . . priority for
payment or reimbursement shall be given to those appli-
cants who . . . agree to accept the greatest reduction
in the amount ordered for payment or reimbursement
by the commissioner under the program, provided such
payment shall not exceed the amount set forth in sub-
paragraph (A) or (B) of subdivision (2) of this subsec-
tion, as applicable. . . . If there are insufficient funds
to satisfy payment and reimbursement of mid-size and
large station applicants, the prioritization established
pursuant to this subsection shall carry over to the subse-
quent fiscal quarter, and if necessary, from year to year,
provided such prioritization may change based upon a
subsequent reduced payment election submitted pursu-
ant to subparagraph (A) (ii) of subdivision (3) of this
subsection.’ ’’ (Emphasis in original.) Aldin Associates
Ltd. Partnership v. State, supra, 209 Conn. App. 769–70.
Our review of the relevant statutes demonstrates that
they clearly and unambiguously establish an order of
priorities for claims and set up a framework for how
claims are to be paid. First, the $36 million allocated
to fund the program has been divided equally among
the four categories of claimants, as required per § 22a-
449r (a) (1). Since the time of that funding, payments
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have been made from the fund to applicants, leaving
$445,734.35 for municipal and other applicants,
$1,853,003.38 for large applicants, $447,904.69 for small
applicants, and $4310.58 for mid-size applicants. Thus,
there currently are funds remaining in each category
for payment to claimants. Under the statutory scheme,
‘‘[i]f at any time there is an amount remaining in one
such category and if in such category there are no
pending applications or applications for which payment
or reimbursement has been ordered by the commis-
sioner but has not been made . . . then such amount
shall be redistributed for payment or reimbursement’’
in a certain order of priority. (Emphasis added.) General
Statutes § 22a-449r (a) (1). Only when those conditions
are met can the amounts remaining in the various cate-
gories be redistributed to other categories for payment,
first to municipal and other applicants and then to small
station applicants. See General Statutes § 22a-449r (a)
(1). Then, only after all claims in those categories are
exhausted and there are leftover funds can any
remaining funds be redistributed to mid-size applicants.
See General Statutes § 22a-449r (a) (1). The plaintiff,
therefore, has a significant hurdle to surmount to be
able to demonstrate its entitlement to be paid; that is,
contrary to the plaintiff’s assertions, the funds in other
categories cannot simply be redistributed into the mid-
size category for payment to the plaintiff. The plaintiff
must show that ‘‘there are no pending applications or
applications for which payment or reimbursement has
been ordered by the commissioner but has not been
made’’ in each of the categories for municipal and other
applicants and small station applicants before funds in
those categories can be redistributed to the mid-size
applicant category. See General Statutes § 22a-449r
(a) (1).
Moreover, a reverse auction system has been estab-
lished for mid-size station owners such as the plaintiff.
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That means that ‘‘priority for payment or reimburse-
ment shall be given to those applicants who . . . agree
to accept the greatest reduction in the amount ordered
for payment or reimbursement by the commissioner
under the program . . . .’’ General Statutes § 22a-449r
(c) (4). Thus, it follows that the order of priority of
claims in the mid-size station applicant category can
change if an applicant elects a reduction in the amount
owed to it greater than other applicants in the category.
In such a case, the applicant will take priority over any
other applicants who have chosen a lesser reduction. As
it stands presently, Alliance Energy, a mid-size station
applicant, has elected a reduction in its claim for
$342,163.16 to thirty-five cents on the dollar. Because
the plaintiff has elected a reduction only to ninety-
five cents on the dollar, Alliance Energy’s claim takes
priority over that of the plaintiff. With $4310.58
remaining in the fund for mid-size station applicants,
there simply are not enough funds remaining in the
mid-size category to pay the plaintiff after satisfaction
of Alliance Energy’s claim.7
Therefore, the viability of the plaintiff’s assertion that
there are sufficient funds to pay its approved applica-
tions is dependent on two conditions: first, funds have
to be moved from other categories into the mid-size
station applicant category, which the plaintiff acknowl-
edges would need to be done, and second, in order for
the commissioner to do that, there must be ‘‘no pending
applications or applications for which payment or reim-
bursement has been ordered by the commissioner but
has not been made . . . .’’8 (Emphasis added.) General
7
Under the reverse auction system, the plaintiff’s applications could take
priority over Alliance Energy’s application if the plaintiff agreed to accept
a greater reduction in the amount ordered for payment or reimbursement
by the commissioner than the reduction selected by Alliance Energy. The
plaintiff has not done so.
8
According to the plaintiff, ‘‘there are no applications for which payment
or reimbursement has been ordered but not made.’’ Specifically, the plaintiff
argues that, although ‘‘some applications have been categorized by the defen-
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Statutes 22a-449r (a) (1). Central to the plaintiff’s claim
is the issue of whether there are ‘‘pending’’ applications
in any of the categories. The plaintiff asserts that ‘‘the
unresolved applications on which the commissioner,
through McDowell, has taken virtually no action for
multiple years cannot be deemed to constitute ‘pending’
applications.’’ Instead, the plaintiff argues that such
applications should be treated as abandoned, as the
evidence shows that they are not being, nor have they
been, pursued by either the commissioner or any of the
other applicants. Therefore, the plaintiff argues that
when all other applications are deemed abandoned,9
dants as ‘awarded not paid,’ this merely means that the application has been
adjudicated—no order of payment has been issued. Had any such order
been issued, the comptroller would have issued a check. Thus, this court
need only decide whether the other applications may properly be considered
‘pending’ pursuant to the statutory scheme.’’ Even if we assume, without
deciding, that the plaintiff is correct and we should limit our review to
whether there are any ‘‘pending’’ applications, the plaintiff’s claim that no
pending applications exist fails for the reasons stated herein.
9
In its appellate brief, the plaintiff relies on the language of § 22a-449f
(h) requiring the commissioner to render a decision as to whether to order
payment not more than ninety days after receipt of an application and
asserts that ‘‘the statutory scheme indicates that an application should not
be considered ‘pending’ for more than ninety days as after such period, it
must either be denied or payment ordered. . . . Applications as to which
no action has been taken for years cannot be considered ‘pending’ in the
context of the . . . statutory scheme as it would lead to the absurd and
unworkable result that the defendants could circumvent the statute and
make no payments of available funds, by merely failing to act.’’ This court
noted in Aldin I that, ‘‘[a]t the time the plaintiff commenced this action, some
of [its] applications had been approved and paid, at least one application
had been approved in 2009 but remained unpaid, and the commissioner had
failed to act on the plaintiff’s remaining applications.’’ Aldin Associates Ltd.
Partnership v. State, supra, 209 Conn. App. 746. Thus, many of the plaintiff’s
own applications were not acted on within the ninety day period of § 22a-
449f (h). The defendants assert in their appellate brief that ‘‘[b]y the plaintiff’s
own argument . . . those applications should have simply been deemed
denied . . . .’’ In its appellate reply brief, however, the plaintiff clarifies
that it is not claiming that ‘‘any application pending for more than ninety
days is automatically deemed denied.’’ Rather, the plaintiff contends that it
has relied on the ninety day provision ‘‘to demonstrate the legislature’s
intention that applications be processed promptly and to indicate that appli-
cations as to which there has been no action by the applicant or the defen-
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there are available funds to move to the mid-size appli-
cant category to pay its claims. In support of this argu-
ment, the plaintiff argues that the term pending ‘‘in
its common and ordinary usage implies an ongoing
process.’’ (Emphasis in original.)
The defendants counter that ‘‘the plaintiff’s claim is
premised on the fictional assertion that [its] applica-
tions are the only ones that exist before the [commis-
sioner under the program]. It argues this despite there
being tens of millions of dollars in applications still
unapproved or unpaid, including many ahead of the
plaintiff in line for payment. Because § 22a-449r does
not support the wholesale elimination of those other
applications—including applicants to be paid before
the plaintiff—the plaintiff failed to demonstrate a clear,
immediate right to mandamus . . . .’’ The defendants
further argue that the plaintiff has not addressed the
court’s conclusions but, rather, is attempting ‘‘to reliti-
gate the impact of the proffered evidence before this
court.’’
With respect to the plaintiff’s argument regarding
abandonment, the defendants acknowledge that ‘‘many
of the remaining applications have various issues requir-
ing disentanglement’’ but argue that the commissioner
does not have discretion under the statutory scheme
to deem applications abandoned and that the plaintiff
has provided no authority to support ‘‘its argument that
any application not being actively pursued against the
state through litigation or other means should be factu-
ally deemed ‘abandoned.’ ’’ If this court were to do so,
the defendants argue, we would be adding language to
§ 22a-449r that does not exist in the statute, in violation
dants for much, much longer than ninety days should be deemed aban-
doned.’’ In making this argument, the plaintiff does not define ‘‘much longer
than ninety days,’’ other than to imply that its applications fall on the not
too long side of the line, while everyone else’s fall on the much too long
side of the line.
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of well established rules of statutory construction. We
agree with the defendants.
The word ‘‘pending’’ is not defined in the statute.
‘‘When a statute does not define a term, General Statutes
§ 1-1 (a) directs that we construe the term according
to its commonly approved usage, mindful of any pecu-
liar or technical meaning it may have assumed in the
law. We may find evidence of such usage, and technical
meaning, in dictionary definitions, as well as by reading
the statutory language within the context of the broader
legislative scheme.’’ (Internal quotation marks omitted.)
Dorfman v. Liberty Mutual Fire Ins. Co., 227 Conn.
App. 347, 398, 322 A.3d 331 (2024), petition for cert.
filed (Conn. November 1, 2024) (No. 240194), and cross
petition for cert. filed (Conn. December 13, 2024) (No.
240229). Merriam-Webster’s Collegiate Dictionary
defines the word pending as ‘‘not yet decided: being in
continuance . . . .’’ Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2014) p. 915. When that definition is
applied to the facts of the present case, the inescapable
conclusion is that there are pending applications in all
four categories of applicants. As exhibits one and eight
demonstrate, there are more than 1500 existing claims
in various stages—new, supplemental, tabled, or
awarded but not paid—across the four categories of
applicants that seek reimbursement under the program.
The total amount of those claims exceeds $65 million.
A reasonable conclusion is that these claims, which,
for various reasons, have not yet been finally decided,
are pending.10
10
Our interpretation of ‘‘pending’’ is consistent with how our Supreme
Court defined the word in Board of Education v. Freedom of Information
Commission, 217 Conn. 153, 161, 585 A.2d 82 (1991), on which the plaintiff
relies. In that case, the court noted: ‘‘ ‘Pending’ has been defined as ‘[b]egun,
but not yet completed; before the conclusion of’; Black’s Law Dictionary
(5th Ed. 1979); and ‘[not] yet decided or settled; awaiting conclusion or
confirmation.’ American Heritage Dictionary (2d College Ed. 1985). From
these definitions it may reasonably be inferred that a pending claim is one
already in existence and in progress. . . . We do not discern in the applica-
ble definitions a requirement that a claim, to be ‘pending,’ must be formally
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The plaintiff argues that ‘‘pending’’ under the statute
requires that the claim is being actively pursued, either
by the commissioner or the applicant. The plaintiff,
however, has failed to provide authority to support its
position, nor is there any language in the statute that
supports its interpretation. Moreover, the plaintiff’s
position operates on the assumption that, because the
plaintiff is the only applicant to have pursued its applica-
tion by way of a legal action, the other applicants must
be deemed to have abandoned their claims for reim-
bursement under the program. That is, because the
plaintiff has pursued legal action to obtain reimburse-
ment for its claims pursuant to the program and other
applicants have not done so, and because the commis-
sioner has not taken any action with respect to those
other applications, some of which have languished for
ten years now, this court should not deem those other
applications as ‘‘pending’’ for purposes of the statute.
For this court to adopt the plaintiff’s position, we would
have to read provisions into the statute that do not
exist, as there is no language in the relevant statutes
that provides a means by which claims can be deemed
abandoned, nor is there language requiring an applicant
to take any particular action following its submission
of an application seeking reimbursement. ‘‘We are not
in the business of writing statutes; that is the province
of the legislature. Our role is to interpret statutes as
they are written. . . . [We] cannot, by [judicial] con-
struction, read into statutes provisions [that] are not
clearly stated.’’ (Internal quotation marks omitted.)
Rider v. Rider, 210 Conn. App. 278, 288, 270 A.3d 206
(2022); see also Jakobowski v. State, 219 Conn. App.
839, 859, 296 A.3d 226 (2023) (‘‘We are mindful that,
under adjudication.’’ (Emphasis added.) Id. Similarly, in this case, the other
applications that are an impediment to the plaintiff are pending despite the
fact that none of those applicants appears to have pressed for a formal
adjudication and the commissioner has not adjudicated all of those applica-
tions.
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in the absence of ambiguity, courts cannot read into
statutes, by construction, provisions which are not
clearly stated . . . . Moreover, [i]t is a well settled
principle of statutory construction that the legislature
knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do
so. . . . [O]ur case law is clear . . . that when the leg-
islature chooses to act, it is presumed to know how to
draft legislation consistent with its intent . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.)); Kru-
ger v. Grauer, 173 Conn. App. 539, 558, 164 A.3d 764
(‘‘[our] . . . court[s] [are] precluded from substituting
[their] own ideas of what might be a wise provision in
place of a clear expression of legislative will’’ (internal
quotation marks omitted)), cert. denied, 327 Conn. 901,
169 A.3d 795 (2017).
This court is puzzled by the failure of the commis-
sioner to administer the program in a timely manner,
as the record demonstrates that the commissioner has
taken no action on many of the hundreds of claims
submitted under the program for as long as ten years
now. We also understand the plaintiff’s frustrations11
over the defendants’ inaction in approving and paying
claims for station owners who remediated their proper-
ties pursuant to the program with the expectation of
being reimbursed, at least to some extent. The statutory
scheme, however, does not provide for a way in which
claims that have not been acted on in nearly ten years,
either by the commissioner or the claimant, can be
deemed abandoned, as the plaintiff would have this
court conclude. Not to mention, the plaintiff’s position
would require this court to deem more than 1500 claims
11
As the plaintiff notes in its appellate brief: ‘‘The defendants’ position,
as expressed in McDowell’s testimony, is that so long as there are applica-
tions that remain unresolved, no funds will be available to pay the plaintiff’s
approved applications—regardless of whether the other applications remain
unresolved for one year or for thirty years.’’
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abandoned, without any notice to the claimants, which
raises due process concerns. See In re Gabriel S., 347
Conn. 223, 233, 296 A.3d 829 (2023) (‘‘[a]n elementary
and fundamental requirement of due process in any
proceeding [that] is to be accorded finality is notice
reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action
and afford them an opportunity to present their objec-
tions’’ (internal quotation marks omitted)); Khan v. Yale
University, 347 Conn. 1, 30, 295 A.3d 855 (2023) (‘‘[t]he
essence of due process is the requirement that a person
in jeopardy of a serious loss [be given] notice . . . and
[an] opportunity to [be heard]’’ (internal quotation
marks omitted)); Romanelli v. Dept. of Social Services,
226 Conn. App. 131, 142, 317 A.3d 807 (2024) (‘‘[a] funda-
mental principle of due process is that each party has
the right to receive notice . . . and the opportunity to
be heard at a meaningful time and in a meaningful
manner’’ (internal quotation marks omitted)). As long
as there exist pending applications, those claimants are
entitled to at least some kind of notice before any such
application can be deemed abandoned, especially when
the statute does not impose any requirement on a claim-
ant, following submission of an application under the
program, to undertake any particular actions concern-
ing the claimant’s application. We are constrained by
the statutory language and cannot write provisions into
statutes that do not exist. See King v. Hubbard, 217
Conn. App. 191, 210, 288 A.3d 218 (2023).
For the foregoing reasons, the plaintiff has not dem-
onstrated the existence of a clear legal right to be paid
the $2,253,323.96 it claims is due and owing from the
commissioner under the program. The evidence in the
record shows that, although $2,750,953 in funds remain
in the program, those funds are allocated among the
four categories of applicants, with $445,734.35 being allo-
cated for municipal and other applicants, $1,853,003.38
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for large applicants, $447,904.69 for small applicants,
and only $4310.58 for mid-size applicants. The plaintiff
assumes that because the amount of the funds
remaining in the program is greater than the total
amount of its claims, it has established that there are
sufficient funds for payment of its claims.12 As we have
indicated, however, under the statutory framework
most of those funds are allocated to other categories,
for which many claims remain pending. With respect
to the plaintiff’s mid-size category, there is a claimant
with priority over the plaintiff with a claim that, if paid,
will leave no remaining funds for the plaintiff to be paid.
We agree with the trial court that ‘‘[a] demand for a
writ of mandamus ordering the commissioner to pay
approved claims in accordance with the priorities and
requirements established by the applicable statutes may
well be appropriate on the record in this case.’’ But, as
the trial court noted, ‘‘that is not what the plaintiff
seeks, perhaps because, if all pending claims were pro-
cessed and paid in accordance with the act, it appears
that the available funds would be largely, if not entirely,
exhausted by payments to other claimants.’’
12
The dissent, which appears to agree with this assumption, contends
that, ‘‘it is undisputed that the program, although now discontinued, has
funds remaining to satisfy the plaintiff’s claims.’’ We disagree. The dissent’s
contention overlooks the clear and unambiguous language of § 22a-449r (a)
(1) setting forth the order of priorities for payment of claims and the reverse
auction system set forth in § 22a-449r (c) (4). Under the system established
pursuant to the relevant statutes, as the evidence presented to the court
demonstrated, there are not sufficient funds in the plaintiff’s category of
claimants to pay the plaintiff’s claims, there are many pending claims in
other categories, and, under the reverse auction system, there is another
claimant with priority for payment ahead of the plaintiff in the mid-size
station category. Because there are numerous pending claims, many of
which also have been approved, there is a substantial factual dispute as to
whether there are funds to satisfy the plaintiff’s claims. Moreover, we also
disagree with the dissent’s suggestion that ‘‘the state need not pay a deserving
claim simply by asserting that there are other pending claims . . . .’’ The
record in the present case demonstrates that the court’s conclusion was
based on evidence and testimony detailing all of the pending claims.
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We conclude that the court properly determined that
the plaintiff did not meet its burden of demonstrating
that it is entitled to a writ of mandamus ordering the
commissioner to request the comptroller to pay the
plaintiff’s approved but unpaid claims. Accordingly, the
court did not abuse its discretion in denying the plain-
tiff’s request for a writ of mandamus.
III
The plaintiff, in an effort to avoid the impact of the
trial court’s reasoning, next claims that, after it ‘‘made
an initial showing that there [are] sufficient funds in
the [program] to pay the plaintiff’s approved claims
. . . the trial court err[ed] in failing to shift the burden
to the defendants to prove that there were other viable
applications to the [program] that rendered such funds
‘unavailable’ to pay the plaintiff.’’ In support of this
claim, the plaintiff argues that neither this court’s deci-
sion in Aldin I ‘‘nor the statutory scheme addresses
which party should have the burden of proof to establish
the existence (or nonexistence) of available funds.’’ In
such circumstances, the plaintiff argues that, in light
of the purpose of the statute and equitable considera-
tions, the burden should be on the defendants to demon-
strate which claims are ‘‘ ‘pending,’ ’’ as they are the
parties seeking to reduce the amount that would other-
wise be awarded to the plaintiff by asserting that there
are pending claims in the various categories of appli-
cants. The plaintiff further asserts: ‘‘Shifting the burden
to the defendants after the plaintiff made an initial
showing that there were sufficient funds in the [pro-
gram] to pay its claims would also avoid requiring the
plaintiff to prove a negative—that there were no viable,
nonabandoned claims by other applicants.’’ (Emphasis
added.) Otherwise, as the plaintiff argues, it would have
had to ‘‘establish the status of over 1500 separate claims
to the [program].’’ The plaintiff acknowledges that the
statutory scheme does not provide for any such burden
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shifting but argues, nonetheless, that this court should
graft such a requirement onto the statutes. We do not
agree with the plaintiff and decline to do so.
The plaintiff’s burden shifting argument is premised
on the presumption that the plaintiff made an initial
showing that there are sufficient funds in the program
to pay its claims. As we explained in part II of this
opinion, we are not persuaded that the plaintiff has
done so. The plaintiff presented evidence establishing
that $2,750,953 in overall funds remain in the program
and are available for payment. Of those funds,
$445,734.35 is left in the category for municipal and
other applicants, $1,853,003.38 for large applicants,
$447,904.69 for small applicants, and only $4310.58 for
mid-size applicants. The statutory scheme clearly limits
how and when the funds in each category may be redis-
tributed to another category and, further, establishes a
priority for redistribution, which places two categories
of applicants above the mid-size applicant category to
which the plaintiff belongs. Accordingly, establishing
that $2,750,953 in overall funds remain in the program
for payment is not the same as establishing that those
funds are available to pay the plaintiff. The plaintiff did
not make an initial showing that there are sufficient
funds in the program to pay its approved claims, and,
therefore, its burden shifting argument necessarily fails.
Moreover, the plaintiff has not pointed this court to any
authority or legislative history of the statutory scheme
that would support its position of imposing a burden
shifting requirement onto the statutes.
The dissent relies on a number of cases to support
its position ‘‘that our Supreme Court has not hesitated
to engraft a burden shifting scheme on a particular
statute, or statutory scheme, in order to render the
provisions of the statute under review both practical
and reasonable.’’ See In re Zakai F., 336 Conn. 272,
276, 255 A.3d 767 (2020); State v. Swebilius, 325 Conn.
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793, 801, 807–808, 159 A.3d 1099 (2017); Craine v. Trin-
ity College, 259 Conn. 625, 636–37, 791 A.2d 518 (2002);
Ireland v. Ireland, 246 Conn. 413, 419, 717 A.2d 676
(1998). Although we recognize that courts, at times,
have engrafted burden shifting requirements onto stat-
utes, we do not believe that the cases relied on by the
dissent or the circumstances of the present case support
doing so with respect to the statutory framework gov-
erning the program.13

First, the statutes governing the program provide
explicit detail concerning how claims under the pro-
gram are to be processed and what a claimant and the
13
We note that the employment discrimination statute at issue in Craine
and the statute at issue in Swebilius, which concerned a situation in which
a criminal defendant alleged that an arrest warrant was not served timely
on him, both lacked guidance on procedure, which was provided by our
Supreme Court. See State v. Swebilius, supra, 325 Conn. 807–808; Craine
v. Trinity College, supra, 259 Conn. 636–37. By contrast, the statutes at
issue in the present case specifically and clearly lay out the procedure
for paying claims submitted under the program. Our decision follows the
procedure set forth by our legislature, as we are required to do. Moreover,
in In re Zakai F., supra, 336 Conn. 272, our Supreme Court decided that
‘‘there is a constitutional presumption that reinstatement of guardianship
rights to a parent under General Statutes § 45a-611 is in the best interests
of the child . . . .’’ (Footnote omitted.) Id., 275–76. In light of that presump-
tion, the court also concluded ‘‘that the party opposing reinstatement must
rebut this presumption by clear and convincing evidence.’’ Id., 276. We
do not agree that this provides support for imposing a ‘‘burden shifting’’
requirement onto the statutory scheme involved in this case, which involves
no constitutional rights or presumptions. Finally, we note that in Ireland,
our Supreme Court specifically stated that, ‘‘[u]nlike some of our sister
states, Connecticut has no statute specifically governing situations in which
a custodial parent wishes to relocate with his or her child,’’ which was the
issue in that case. Ireland v. Ireland, supra, 246 Conn. 419–20. The burden
shifting scheme imposed in that case was not grafted onto a statute. Indeed,
following Ireland, our legislature enacted General Statutes § 46b-56d, which
establishes the analysis a court is to apply when deciding a postjudgment
motion to relocate with a minor child and ‘‘adopted the factors set forth by
our Supreme Court in Ireland . . . .’’ N. R. v. M. P., 227 Conn. App. 698,
718, 323 A.3d 1142 (2024). Therefore, the dissent’s reliance on these cases
to support imposing a burden shifting scheme on the statutes at issue in
the present case is misplaced.
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commissioner must do. Significantly, the present case
is not a situation in which the statutory framework does
not work; rather, the plaintiff seeks to impose a burden
shifting requirement because it is frustrated with how
long the commissioner has taken in processing and
paying claims. In other words, the plaintiff essentially
is seeking to impose a burden shifting requirement as
a sanction for the defendants’ prolonged delays in
administering the program. As we have stated and as
was suggested by the trial court, the way to solve this
problem is for the plaintiff to seek a writ of mandamus
ordering the commissioner to resolve all of the ‘‘pend-
ing’’ claims, not by adding an ad hoc burden shifting
requirement to a statutory framework that already pro-
vides in great detail how claims under the program are
to be administered.
Additionally, we underscore the fact that the implica-
tions of imposing a burden shifting requirement onto
the statutory framework extend far beyond the dispute
at issue in the present case. As we have stated, there
are more than 1500 existing claims in various stages—
new, supplemental, tabled, or awarded but not paid—
across the four categories of applicants that seek reim-
bursement under the program. If this court were to
adopt the burden shifting scheme proposed by the plain-
tiff and the dissent and if the defendants did not meet
that burden, numerous entities that are not parties to
this action could be adversely impacted, without any
notice or opportunity to be heard. This raises serious
due process concerns, which we have outlined in this
opinion and which have not been addressed by the
dissent. We also must be mindful that the plaintiff here
seeks a writ of mandamus. It is well established in our
case law that the plaintiff, as the party seeking a writ
of mandamus, bears the burden of establishing that it
has a clear legal right to payment from the defendant.
See Wozniak v. Colchester, supra, 193 Conn. App. 856;
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see also Stewart v. Watertown, supra, 303 Conn. 711–12.
Thus, the plaintiff unquestionably bore the burden of
demonstrating that it had a clear legal right to be paid
for its approved application, which it failed to do. As
we previously noted, ‘‘[t]he writ of mandamus is an
extraordinary remedy to be applied only under excep-
tional conditions, and is not to be extended beyond
its well-established limits.’’ (Internal quotation marks
omitted.) Hennessey v. Bridgeport, supra, 213 Conn.
659. An applicant for the writ cannot achieve this
extraordinary remedy by shifting the burden to the gov-
ernmental official to prove that the applicant is not
entitled to the writ. Sanctioning the burden shifting
suggested by the plaintiff and the dissent would clearly
expand the writ ‘‘beyond its well-established limits.’’
(Internal quotation marks omitted.) Id.

We understand, as well, that it is the duty of a court
to ‘‘construe a statute in a manner that will not frustrate
its intended purpose or lead to an absurd result.’’ (Inter-
nal quotation marks omitted.) Mack v. LaValley, 55
Conn. App. 150, 166, 738 A.2d 718, cert. denied, 251
Conn. 928, 742 A.2d 363 (1999). The plaintiff maintains
that ‘‘[t]he contention that no funds are available to pay
the plaintiff’s approved applications so long as there
are applications that remain unresolved, whether that
lasts for one year or forty years, must be rejected as an
absurd and unworkable interpretation of the statutory
scheme. Instead, in order to satisfy the statutory pur-
pose of the [program] and in order to avoid an absurd
and unworkable result, the unresolved applications as
to which the commissioner has taken virtually no
action, often for over a decade, cannot be deemed to
constitute ‘pending’ applications for determining avail-
able funds.’’ This argument, like many others of the
plaintiff, illustrates its frustration over the defendants’
inaction in administering payments under the program.
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This court is equally perplexed by the defendants’ pro-
longed delays in addressing claims submitted under the
program. Nonetheless, for the reasons stated herein,
we do not believe that it is within the province of this
court to add requirements to the statutory framework
governing the program, whether they be time limita-
tions, rules for deeming an application abandoned or
a burden shifting scheme.14 See PPC Realty, LLC v.
Hartford, 350 Conn. 347, 358, 324 A.3d 780 (2024)
(declining to graft language onto statutes that does not
exist); State v. Wilchinski, 242 Conn. 211, 232, 700 A.2d
1 (1997) (same); Rider v. Rider, supra, 210 Conn. App.
288 (same); In re Probate Appeal of Knott, 190 Conn.
App. 56, 60 n.8, 209 A.3d 690 (2019) (‘‘[t]he role of the
courts is not to rewrite statutes or graft exceptions onto
the language existing therein; that is a function of the
legislature’’); Asia M. v. Geoffrey M., 182 Conn. App.
22, 33, 188 A.3d 762 (2018) (‘‘[I]t is not the function of the
courts to enhance or supplement a statute containing
clearly expressed language. . . . Rather, [w]e are obli-
gated to construe a statute as written. . . . Courts may
not by construction supply omissions . . . or add
exceptions . . . . It is axiomatic that the court itself
cannot rewrite a statute . . . . That is a function of
14
Our conclusion is not inconsistent with the public policy of the statutes
governing the program, as the dissent suggests. In addition to the plaintiff,
numerous other entities, encouraged by the program to remove potentially
problematic underground storage tanks, have done so and submitted claims
for reimbursement. In this majority opinion, we hold that claims by those
entities cannot be disregarded simply because the plaintiff has decided to
take a more aggressive approach to pursuing its claims through litigation.
This majority opinion, therefore, cannot be construed as discouraging busi-
nesses from addressing the environmental concerns that prompted the enact-
ment of the program, especially given that the program has long been discon-
tinued. Moreover, the plaintiff could pursue a mandamus asking the court
to order the commissioner to complete its evaluation of all claims under
the program, which would be the fairest solution for all claimants who did
their part under the program. As the trial court recognized, however, the
plaintiff has chosen not to pursue that remedy, which likely would result
in there being insufficient funds to pay the plaintiff’s claims.
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the legislature.’’ (Citation omitted; internal quotation
marks omitted.)).
In summary, the plaintiff, having failed to establish
that it has a clear legal right to be paid $2,253,323.96
for its approved claims, has not demonstrated that the
court abused its discretion in denying its request for a
writ of mandamus ordering the commissioner to order
the comptroller to pay the plaintiff’s approved claims.
Nor has the plaintiff persuaded us that we should
impose onto the statutes governing the program a bur-
den shifting requirement for the defendants to establish
the existence of any ‘‘pending’’ claims.
The judgment is affirmed.
In this opinion BRIGHT, C. J., concurred.