Opinion
LLICV166014547S
06-20-2017
Judith Wick et al. v. Planning & Zoning Commission of the Town of Watertown et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. John D. Moore, J.
I
BACKGROUND
The two defendants, Planning & Zoning Commission of the Town of Watertown (Commission) and Shaker Enterprises, LLC (Shaker), have each moved to dismiss the amended complaint. Each defendant makes the same argument, contending that the court lacks subject matter jurisdiction because the plaintiffs lack standing. Specifically, the defendants argue that the plaintiffs have failed to allege facts that would support a finding of classical aggrievement. The plaintiffs disagreed and filed objections to the motions to dismiss. The plaintiffs admit that they are proceeding under a claim of classical aggrievement only, and do not claim statutory aggrievement. The court heard argument during short calendar on April 24, 2017. For the reasons set forth below, the court denies the two motions to dismiss.
II
PROCEDURAL HISTORY AND CONTENTIONS OF THE PARTIES
Even in its nascent stage, the procedural posture of this administrative appeal is worthy of discussion.
The plaintiffs filed their original appeal (#100.31) on December 5, 2016 after it was served on October 27, 2016. (Please see return of service #100.32). The return date was December 20, 2016. Shortly thereafter, on December 29, 2016, the defendant Commission filed its first motion to dismiss (#101), arguing that the plaintiffs were not aggrieved and, thus, had no standing to bring this action. The Commission filed a memorandum in support of this motion on December 30, 2016 (#102). The defendant Shaker followed suit on December 30, 2016, filing its motion to dismiss (#103) and memorandum in support of same (#104), which raised the same issue as to lack of aggrievement.
On January 17, 2017, the plaintiffs' counsel filed two pleadings, a motion to extend time to respond to the motions to dismiss (#105) and a motion to remove two named plaintiffs (#106), each of whom had been named by mistake. The motion to remove plaintiffs stated, correctly, that it had been filed within thirty days of the return date, and was, therefore, filed as of right under General Statutes § 52-128 and Practice Book § 10-59. The very next day, January 18, 2017, the plaintiffs filed a " motion to amend appeal" (#107), which again recited, correctly, that it had been filed within thirty days of the return date. Along with this motion, the plaintiffs (minus the two plaintiffs who had been named by mistake) filed their amended appeal (#108). The amended appeal contained, inter alia, additional factual allegations pertinent to the issue of classical aggrievement. Even though the title of plaintiffs' motion appeared to seek court approval to amend their appeal, the amended appeal was filed as of right. There was, therefore, no need for the court to act upon motion #107, and amended appeal #108 became the operative appeal in this case pursuant to § 52-128 and Practice Book § 10-59.
On March 1, 2017, the plaintiffs filed objections to each of the two defendants' original motions to dismiss, 0109 and 110. On March 8, 2017, the defendant Commission filed a second motion to dismiss (#111) and memorandum of law in support of same (#112). The memorandum of law stated that it was " directed at the Plaintiffs' amended complaint dated January 18, 2017." Commission's Memorandum in Support of Motion to Dismiss, p. 1, March 1, 2017. On the same day, the defendant Shaker filed a " second motion to dismiss pursuant to C.G.S. Section 8-8(j) by defendant Shaker Enterprises, LLC, " (#113), along with a memorandum of law in support of same (#114). The memorandum of law posited that it was " addressed to Plaintiff's First Amended Appeal."
The plaintiffs filed an objection to each of the second motions to dismiss on April 5, 2017, ##115 and 116, respectively. The defendant Commission has not, to date, returned the record to the court.
III
REVIEW OF RELEVANT LEGAL PRINCIPLES
A
Issues Arising from the Amendment of the Appeal
As discussed, supra, the plaintiffs filed a motion to amend their appeal after the defendants filed their first motions to dismiss, each of which argued that the appeal should be dismissed for a lack of subject matter jurisdiction. " It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." (Internal quotation marks omitted.) F.D.I.C. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). As a result, " as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). In other words, " [o]nce the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003); see also Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245-46, 558 A.2d 986 (1989) (" the trial court was required to address the defendant's jurisdictional challenge before ruling on his other motions"). Our Supreme Court has held, in particular, that granting a motion to amend a complaint interposed after a motion to dismiss for lack of subject matter jurisdiction was filed was improper. F.D.I.C. v. Peabody, N.E., Inc., supra, 96-99; Gurliacci v. Mayer, supra, 545.
What distinguishes this case from those decisions is that, even though the plaintiffs filed a " motion to amend" their appeal, their amended appeal was filed as of right. Under identical circumstances, our Supreme Court held that " there was no 'motion or pleading' to 'be entertained' by the court . . . because the amendment was as of right under § 52-128 and Practice Book § 131 [now § 10-59] and took effect ab initio." Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977). Citing Sheehan, our Appellate Court rejected an argument that F.D.I.C., supra, mandated a different result, stating, " In the case at hand, however, the plaintiffs did not move to amend their complaint; rather, they submitted an amended complaint as of right ." (Emphasis in original.) Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 640, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). The fact that the plaintiffs entitled their filing a " motion to amend" does not alter the fact that they filed the amended appeal within thirty days of the return date. Therefore, the plaintiffs' amended appeal was filed as of right and is the operative complaint for the purpose of considering the defendants' motions to dismiss.
B
Classical Aggrievement Issues Presented in a Motion to Dismiss
As posited above, the defendants moved to dismiss this administrative appeal by contending that the plaintiffs lack standing because they have not alleged aggrievement. Section 8-8 of the Connecticut General Statutes sets out important principles guiding the court's decision on these motions to dismiss. Apart from exceptions that do not apply in this case, " any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(b). " The right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work . . . injustice . . ." General Statutes § 8-8(p). " Any defendant may, at any time after the return date of the 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 court may, on the record, grant or deny the motion . . ." General Statutes § 8-8(j).
As discussed supra, the court heard argument on the two motions to dismiss during short calendar. The defendant Town has not returned the administrative record to the court. No party filed affidavits and no party sought to introduce evidence. Although an administrative appellant plaintiff is ultimately required not only to plead, but also to " prove some injury in accordance with our rule on aggrievement"; Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 526, 119 A.3d 541 (2015); it would be unjust to require the plaintiffs to do so before the record below has been returned to the court. Under virtually identical circumstances, the Appellate Court held that such a challenge to aggrievement must be decided upon the pleadings. " We begin our analysis by noting that the court had before it arguable short calendar motions to dismiss. There was no evidentiary hearing, and the file reveals no request for one, nor were affidavits filed by [two defendants] with their motions to dismiss. In this context, we consider only the complaint and facts necessarily implied from the complaint in deciding the motion." St. Germain v. LaBrie, 108 Conn.App. 587, 592, 949 A.2d 518 (2008). See also Pomazi v. Conservation Commission, 220 Conn. 476, 478, n. 6, 600 A.2d 320 (" the parties and the trial court treated the issue of aggrievement solely as a question of law: whether the plaintiffs had pleaded sufficient facts that, taken as true, established aggrievement as a matter of law"). This conclusion comports with black letter law on pretrial motions to dismiss. " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
The plaintiffs argue, however that, if they are required to prove aggrievement, the motions to dismiss are premature until such time as the administrative record has been returned to the court. Please see April 5, 2017 plaintiffs' memorandum of law in opposition to motion to dismiss (#116).
In deciding whether a plaintiff has alleged classical aggrievement, the court " must examine the complaint to determine whether it contains allegations that, if proved, would demonstrate that the plaintiffs had a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . [and] that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." (Emphasis in original; internal quotation marks omitted.) Connecticut Independent Utility Workers v. Dept. of Public Utility Control, 312 Conn. 265, 273, 92 A.3d 247 (2014); see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 32.5, p. 166-67 (discussing two-part test for classical aggrievement).
To survive a motion to dismiss, classical aggrievement must be pleaded with some degree of specificity. Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968). Without a specific allegation of aggrievement, there is no subject matter jurisdiction. Old Rock Road Corp. v. Commission on Special Revenue, 173 Conn. 384, 386-88, 377 A.2d 1119 (1977). " In considering whether the plaintiffs properly pleaded facts sufficient to establish aggrievement, however, we view the complaint in the light most favorable to the plaintiffs." Lucas v. Zoning Commission, 130 Conn.App. 587, 590-91, 23 A.3d 1261 (2011). The court must apply " every reasonable inference in favor of the plaintiffs." Connecticut Independent Utility Workers v. Dept. of Public Utility Control, supra, 312 Conn. 274.
C
Standing and Subject Matter Jurisdiction
In a zoning appeal such as this, aggrievement is a question of standing. Handsome, supra, 317 Conn. 525-27. The defendants' argument that the plaintiffs have not alleged aggrievement, and, therefore, standing, requires the court to decide if it has subject matter jurisdiction over this case. As a result, it is useful for the court to review the guidance of our Supreme Court pertaining to the topics of subject matter jurisdiction and standing. " 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.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). " If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . A determination regarding a trial court's subject matter jurisdiction is a question of law." (Internal quotation marks omitted.) Id., 801-02.
" Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue." (Internal quotation marks omitted.) Id., 802-03. " As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great." (Internal quotation marks omitted.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-13, 508 A.2d 743 (1986).
IV
DISCUSSION
From the above-cited case law, the court draws the following conclusions.
For purposes of deciding these motions, the court must take the facts to be those alleged in the amended complaint, including facts necessarily implied therefrom, and must construe them in the light most favorable to the plaintiffs. The present motion does not require the court to find that the plaintiffs have proven that they were classically aggrieved, but rather whether the court has the authority to adjudicate the type of controversy brought before it by the amended appeal. In so doing, the court must decide whether the plaintiffs have alleged a specific, personal and legal interest in the subject matter of the controversy, as opposed to a general interest that all members of the community share, and also whether the alleged conduct has specially and injuriously affected that specific personal or legal interest.
The court must also bear in mind that the defendants' contention that the plaintiffs did not allege aggrievement constitutes a claim that the plaintiffs lack standing to bring this administrative appeal. Standing is not a technical rule designed to keep aggrieved parties out of court or to test substantive rights. Rather, the court must view standing as a practical concept designed to ensure that judicial decisions, which may affect the rights of others, are forged through the adversarial process, with each side fairly and energetically represented by parties who actually have a stake in the outcome. In other words, standing is demonstrated when a plaintiff makes a colorable claim of a direct injury he has suffered or is likely to suffer. As long as there is such a direct injury alleged, the injury alleged need not be substantial. Moreover, under § 8-8(p), the " right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work . . . injustice."
As mentioned above, the plaintiffs argue that they have alleged classical aggrievement. To review, " [c]lassical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Berkshire-Litchfield Environmental Council, Inc. v. Esty, 162 Conn.App. 478, 486-87, 128 A.3d 975 (2016). Moreover, " [a]ggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." Id., 487.
The court must, as a threshold matter, consider the nature of the decisions appealed from to ascertain whether the plaintiffs have a " specific personal and legal interest" in these decisions and whether the plaintiffs have allegedly been " specially and injuriously affected" by these decisions. 9A R. Fuller, supra, § 32.5, p. 167. The plaintiffs appeal from three decisions of the defendant Commission. The plaintiffs have alleged the following facts concerning these decisions. One decision amended the zoning map to rezone 486 Straits Turnpike (subject property) from a residential zone to a commercial zone. The second decision granted a request for a special permit to vary lot size requirements found in the regulations for the subject property. The third decision allowed a new and used car sales business on the subject property as an exception to existing requirements in the zoning regulations.
The plaintiffs have alleged the following facts that support the conclusion they have pleaded that they were classically aggrieved. The plaintiffs live or own real estate within the residential zoning district that included the subject property before its zoning use was changed from residential to commercial. The plaintiffs live in close proximity to the subject property. The personal interests of the plaintiffs in protecting their own property values and quality of life are different from those of the public and will be adversely affected by the transformation of the subject property into a commercial use that intrudes upon a residential district. The defendant Shaker's application would change the subject property from one that housed a residential building into a car dealership with a large parking lot, exterior light pole and floodlights, a repair facility with machinery, large truck deliveries and associated traffic, noise and pollution. Traffic will be increased in this formerly residential neighborhood. Invasive light will penetrate onto the plaintiffs' lots and homes. Offensive noise from the proposed commercial use will disturb the quiet enjoyment of the plaintiffs' homes. The plaintiffs' own property values will decrease and the plaintiffs' health will be impaired. Unlike the community as a whole, the plaintiffs either live north of Bunker Hill Road, a present line of demarcation between commercial and residential uses or within close proximity to the road on which the subject property is located. The plaintiffs' properties are in the direct path of the commercial expansion heralded in by the decisions of the Commission, and, as a result, the plaintiffs will bear the direct effects of this negative intrusion into their residential neighborhood.
The court finds that these allegations, read together, constitute claims that the plaintiffs have a specific, personal and legal interest in the subject matter of the decisions, as opposed to a general interest that all members of the community share and that the Commission's decision may have specially and injuriously affected the plaintiffs' specific personal or legal interests.
As noted commentator Judge Fuller points out, " Obviously, there is a better chance of proving aggrievement for property owners near the land involved in the appeal . . ." Id., 168. Moreover, the zoning decisions at issue affected only one property, the subject property, as opposed to affecting zoning town-wide or on a broader basis. " Appeals of general amendments to land use regulations may not comply with the first part of the [classical aggrievement] test"; id., 173; and " in order to . . . meet the first part of the aggrievement test, there must be proof that the regulation does not apply generally to the entire town, and that there is a specific and personal impact on the property owner taking the appeal . . ." Id., 174. In this case, the three Commission decisions focus and change zoning for only one parcel, not the entire town, and these decisions would doubtlessly have a more specific, personal and legal interest on those parties who live nearby, as do the plaintiffs.
Similarly, when given the opportunity to prove aggrievement at a hearing, parties in positions similar to that of the instant plaintiffs have proven the second prong of the classical aggrievement test. " Depreciation in value of property or adverse effects from development of nearby property may establish aggrievement." Id., 192. Parties have proven aggrievement resulting from " increase[d] traffic, noise, congestion, and . . . the effect of the granting of the variance" when these factors decreased property values; Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77 (1972); and, under certain circumstances, from the probability of " increased traffic hazards and traffic congestion . . ." Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426, 232 A.2d 330 (1967). Noise and lights, among other factors, when directly affecting an adjoining property, have also been found to prove aggrievement. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 661, 211 A.2d 687 (1965).
For all of these reasons, the court finds that the plaintiffs have standing. Their well-pleaded allegations set forth a colorable claim of classical aggrievement, of direct injury that the plaintiffs will likely suffer as a result of the three decisions at issue. When people live in a residentially zoned district, and a parcel of land within that residential district is transmogrified into a car dealership, with its attendant heavy car carrier and customer traffic, noise, intrusively bright artificial lighting, all of which will potentially result in decreased property values to such people, those people should have the opportunity to appeal the zoning decision that gives rise to this transmogrification. Therefore, the court has the authority to decide the controversies presented in this administrative appeal and has subject matter jurisdiction over the allegations of the amended appeal. This decision does not, of course, guarantee that the plaintiffs will ultimately prove classical aggrievement at the hearing. It does mean, however, that the plaintiffs should be given the right and opportunity to attempt to do so.
V
CONCLUSION
The court denies both motions to dismiss.
So ordered.