Opinion
No. CV 03-0827307S
April 14, 2004
MEMORANDUM OF DECISION
I.
The plaintiffs, including Patti Sanko-Lowry (Sanko-Lowry), filed this suit on July 24, 2003, against the Town of West Hartford (Town) in connection with a July 9, 2003 decision of the West Hartford Zoning Board of Appeals (ZBA) in which it dismissed her appeal of a site plan approval for a Walgreens Pharmacy at 1110 New Britain Avenue (Walgreens property). The plaintiffs' original complaint named the Town, the clerk of the ZBA and Barry Feldman, the town manager.
The plaintiffs filed an amended complaint on September 3, 2003, seeking in the first count, an appeal from the ZBA, a finding that it erred in deciding lack of standing; in the second count, a request for declaratory relief on the actions concerning both the Walgreens property as well as the property at 999 So. Quaker Lane (GDC property); in the third count, requesting mandamus relief to apply the Traditional Neighborhood Design District (TNDD) to both properties; in the fourth count, a finding that the deeding of certain property to GDC constituted a violation of Article first, § 1, of the constitution of Connecticut; and finally, in the fifth count, an injunction from failing to apply the TNDD to both properties.
The owner and the developer of the Walgreens property subsequently became a party defendant. On October 6, 2003, the Town filed a motion to dismiss for a variety of reasons against all plaintiffs. At the hearing on this motion, on February 23, 2004, the plaintiffs indicated that they were only proceeding against the Walgreens defendants and that they were making no further claims against the GDC property or the Town's actions in connection with that property. The present matter is a companion case to another dispute between the same named parties, which this court dismissed on November 14, 2003, as a result of the plaintiff's failure to prove aggrievement. See, Sanko-Lowry v. West Hartford, superior court, judicial district of Hartford, Docket No. CV 03-0825381 (November 17, 2003, Berger, J.) ( Sanko-Lowry I). The facts and discussion of Sanko-Lowy I are hereby incorporated into this decision.
II
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1043 (1996).
General Statutes § 8-8(j) provides that "[a]ny defendant may, at any time after the return date of appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing." The Town asserts two grounds for dismissing this action: 1) the ZBA is a necessary party here and has neither been named nor served with the complaint and 2) the plaintiffs lack standing to pursue any of the claims asserted.
A.
Section 8-8 governs appeals taken from the decisions of zoning board of appeals. "There is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Citations omitted; internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, supra, 259 Conn. 611-12. "Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory . . . provisions in which it has its source." (Emphasis in original; internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). "[Such] provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal." Simko v. Zoning Board of Appeals, 205 Conn. 413, 419, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), modified by Public Acts 1988, No. 88-79, § 1(b).
In the present case, the summons fails to name the ZBA as a party defendant to this action. Instead, it names the clerk of the ZBA, but service on the clerk of the ZBA is insufficient to make the ZBA a party to the appeal. "In any appeal from a decision of a municipal land use agency, the agency itself must be named as a defendant since its decision is being challenged, and even though it has no corporate existence of its own, it represents the public interest. The agency itself represents the public interest and not its individual members . . ." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (1996) § 25.5; General Statutes § 8-8(f). See, e.g., Spicer v. Zoning Commission, 212 Conn. 375, 380 n. 6, 562 A.2d 21 (1989) (plaintiffs required to cite and serve clerk of Noank Fire District to satisfy § 8-8). See also, Lamphere v. Groton Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. 560354 (August 30, 2002, Corradino, J.) ( 3 Conn.L.Rptr. 681).
The plaintiffs attempted to rectify this matter by naming the ZBA in their September 3, 2003 amended complaint. Section 8-8(b), however, sets a fifteen-day limitation from the date the notice of the decision was published for a party to take an appeal of a ZBA decision. September 3, 2003 is certainly more than fifteen days after the publication of the July 9, 2003 decision. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). The amended complaint does not cure the defect.
B.
Section § 8-8(b) grants any person "aggrieved" by any decision of a board the right to take an appeal to the Superior Court. Section 8-8(a)(1) defines an "aggrieved person" as "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land" involved in the dispute. Because no plaintiff owns property which either abuts or is within one hundred feet of 1110 New Britain Avenue, no plaintiff can claim statutory aggrievement as defined by § 8-8(a)(1).
A party may also prove aggrievement by demonstrating that she has "a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community . . . [and that she] has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003) ("classical aggrievement"). Sanko-Lowry argues that she is classically aggrieved by the ZBA's decision to dismiss her case. Additionally, all plaintiffs argue that they are aggrieved because (1) they may suffer pecuniary loss due to the depreciation in the value of their property and (2) they are in the "zone of interest" protected by the TNDD.
1.
Sanko-Lowry claims she was aggrieved by the ZBA's refusal to decide her case. The ZBA, however, did not refuse to decide her case. Instead, the ZBA found that Sanko-Lowry failed to prove aggrievement and dismissed her appeal. "[T]he mere denial of an application does not establish aggrievement." Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969).
Connecticut courts "have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). "The doctrine provides no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." (Internal quotation marks omitted.) Id., 564.
While plaintiff Sanko-Lowry failed in her appeal of the decision of the town planner, none of the other plaintiffs even sought to pursue their administrative remedy of appeal. Hence they have not exhausted their administrative remedies. In Stepney, the court further noted that the purpose of this exhaustion doctrine "is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review." (Internal quotation and citation omitted.) Id. 564.
2.
All plaintiffs claim that they are classically aggrieved because they are likely to suffer pecuniary loss due to the ZBA decision. "[T]he plaintiff must allege a legally protected interest that is concrete and actual, not merely one that is hypothetical. A speculative loss of revenue is insufficient to confirm standing and establish aggrievement." New England Rehabilitation Hospital of Hartford, Inc. v. CHHC, 226 Conn. 105, 127, 627 A.2d 1257 (1993). See also, Sachem's Head Assoc v. Lufkin, 168 Conn. 365, 368, 362 A.2d 519 (1975) (court rejected plaintiffs' claim that their properties would depreciate by ten to fifteen percent if a seawall were built on abutting property); Fareri v. Greenwich Inland/Wetlands Watercourses Agency, Superior Court, judicial district of Stamford, Docket No. CV 96-0151183 (October 21, 1997, D'Andrea, J.) ( 20 Conn.L.Rptr. 434) (court rejected plaintiff's claim that denial of right to construct a pool and terrace would have resulted in a greater profit as speculative). "Mere generalizations and fears do not prove that an appellant is an aggrieved person." Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 668, 560 A.2d 975 (1989).
Finally, notwithstanding the rejection of this claim, the plaintiffs are also unable to persuade this court that this alleged loss is specific and personal to them. See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 539. Surely, the impact of this development not only affects the named plaintiffs, but the public at large.
3.
In Sanko-Lowy I, with claims and facts very similar to the present case, Sanko-Lowry argued the "zone of interest," theory to establish classical aggrievement. This court held that "[t]his standard [zone of interest], however, is simply not the rule we follow here in appeals for administrative land use decisions." Sanko-Lowry I, supra, superior court, Docket No. CV03-0825381. The other plaintiffs in the present action stand in the same factual position as Sanko-Lowry in their "zone of interest" argument and, for the reasons previously stated in Sanko-Lowry I, this theory cannot prevail.
IV
If the court cannot determine that the party bringing suit is an aggrieved party and does not have standing to bring suit, then the court is without subject matter jurisdiction to determine the matter. See Fort Trumbull Conservancy v. Alves, supra, 262 Conn. 480. Accordingly, the motions to dismiss are granted.
Berger, J.