Opinion
No. CV 03-0830228
March 1, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#121)
The defendants' move to dismiss the plaintiffs' amended complaint.
The facts are as follows: The plaintiffs, Pamela Andross, Brian Caron, Patti Sanko-Lowry, Kathleen Kennedy, Marleen Grandia, Larry Baker and Thomas Tague, filed a two-count amended complaint on December 17, 2003, against the defendants, the town of West Hartford, municipal employees, Barry Feldman, James Francis, Tammy Daniels-Bradley and Norma Cronin (collectively, municipal defendants); Ginsburg Development CT, LLC (developer); and Mark Investments, LLC and Nixon Plainville, LLC (collectively, Walgreens defendants). In the first count of their amended complaint, the plaintiffs allege that on April 24, 2003, the municipal defendants voted to transfer 1.52 acres of public park land located at 999 South Quaker Lane (South Quaker Lane property) to the developer for construction of a condominium complex. They seek to enjoin the conveyance, alleging that the municipal defendants approved the land sale in violation of chapter VI, section 2(f) of the West Hartford town Charter and article first, § 1, of the Connecticut constitution. In the second count, the plaintiffs repeat the allegations of the first count and allege that the Walgreens defendants are developing a site (Walgreens property) to construct a Walgreens Pharmacy. They allege that the development of both sites violates "An Ordinance Establishing a Traditional Neighborhood Design District for Elmwood Center," § 177-44.1 of the West Hartford Code (ordinance), which the town of West Hartford adopted on May 12, 1998, to promote long-term development for the economic and social benefit of the residents of the Elmwood section of West Hartford. The plaintiffs allege that the municipal defendants have not implemented the ordinance and further allege that the developer's and the Walgreens defendants' proposed development will subject them to greater traffic congestion, suburban sprawl, decreased property value and environmental degradation. They request, inter alia, a court order requiring the municipal defendants to enforce the ordinance, a declaratory ruling invalidating the transfer of land to the developer and an order enjoining the Walgreens defendants' and the developer's continued development of the Walgreens and the South Quaker Lane properties. On September 28, 2004, the plaintiffs requested leave to amend their complaint and filed a second amended complaint. The developer and the Walgreens defendants objected to the plaintiffs' request on October 4, 2004. The court has not acted on the objection.
"[A] party may amend his or her pleadings or other parts of the record or proceedings . . . [b]y filing a request for leave to file such amendment, with the amendment appended . . . and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall . . . be filed with the clerk within the time specified above and placed upon the next short calendar list." Practice Book § 10-60(a). On October 4, 2004, the developer objected in writing to the plaintiffs' request on the ground that their second amended complaint names the West Hartford Zoning Board of Appeals as a defendant in violation of General Statutes § 8-8, which governs appeals taken from the decisions of municipal land use agencies. Because the court has not acted on the plaintiffs' request and because the developer and the Walgreens defendants timely objected, the amended complaint filed on December 17, 2003 is the operative complaint.
On October 4, 2004, the municipal defendants moved to dismiss count one of the plaintiffs' amended complaint as moot because the contested property conveyances had occurred. They moved to dismiss the second count on the grounds that the plaintiffs were not aggrieved and that they improperly commenced an independent action in lieu of pursuing administrative remedies or timely appealing the municipal defendants' zoning decisions as required by General Statutes § 8-8. The municipal defendants filed a memorandum of law in support of their motion to dismiss accompanied by two memoranda of decision entered on November 17, 2003 and April 14, 2004 in a separate, but related action ( Sanko-Lowry action). In both decisions, the court, Berger, J., granted motions to dismiss the amended complaint filed by the plaintiffs in the Sanko-Lowry action on September 4, 2003 in connection with the zoning changes at issue in this case. See Sanko-Lowry v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0825381 (November 17, 2003, Berger, J.); Sanko-Lowry v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0827307 (April 14, 2004, Berger, J.).
The Walgreens defendants also moved to dismiss the plaintiffs' amended complaint in the present case on October 4, 2004, similarly arguing that the plaintiffs failed to exhaust their administrative remedies and lacked standing to invoke the court's subject matter jurisdiction. They further stated that the plaintiffs are collaterally estopped from re-litigating arguments rejected by the decision of the court, Berger, J., in the Sanko-Lowry action. The Walgreens defendants submitted a memorandum of law in support of their motion to dismiss, accompanied by the plaintiffs' September 4, 2003 amended complaint in the Sanko-Lowry action and the memoranda of decision from the Sanko-Lowry action.
On October 15, 2004, the plaintiffs filed a memorandum of law in opposition to both the municipal defendants' and the Walgreens defendants' motions to dismiss. The court, Beach, J., granted both the municipal defendants' and the Walgreens defendants' motions on November 1, 2004; however, by the terms of the decision, the court limited its ruling to the Walgreens property based on counsel's representations at oral argument that the South Quaker Lane property was the subject of ongoing negotiations. See Andross v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0830228 (November 1, 2004, Beach, J.) ( 38 Conn. L. Rptr. 187, 188 n. 1).
On September 12, 2005, the developer moved to dismiss the plaintiffs' amended complaint on the ground that the court's rulings on the municipal defendants' and the Walgreens defendants' motions to dismiss apply to the developer's present motion. On September 19, 2005, the municipal defendants filed a motion to dismiss in which they "join defendant Ginsburg Development CT, LLC's motion to dismiss dated September 9, 2005," unaccompanied by a memorandum of law. On November 3, 2005, the plaintiffs filed a memorandum of law in opposition to the developer's and the municipal defendants' motions to dismiss.
A motion to dismiss is the appropriate procedural vehicle for challenging the jurisdiction of the court. Practice Book § 10-30. "The grounds which may be asserted in a motion to dismiss are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Practice Book § 10-31. "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." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2905). "[O]nce raised, the question of subject matter jurisdiction must be answered before [the court] can address the other issues raised." Loricco Towers Condominium Ass'n. v. Pantani, 90 Conn.App. 43, 47, 876 A.2d 1211, cert. denied, 276 Conn. 925 (2005).
"The issue of standing implicates this court's subject matter jurisdiction." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 368, 880 A.2d 138 (2005). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 390, 880 A.2d 865 (2005). "[T]he plaintiff ultimately bears the burden of establishing standing." Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742 (2005). "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 154, 851 A.2d 1113 (2004).
Standing may also be predicated on taxpayer status. "The plaintiffs status as a taxpayer does not automatically give her standing to challenge alleged improprieties in the conduct of the defendant town . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d her] to suffer some pecuniary or other great injury . . . It is not enough for the plaintiff to show that her tax dollars have contributed to the challenged project . . . the plaintiff must prove that the project has directly or indirectly increased her taxes . . . or, in some other fashion, caused her irreparable injury in her capacity as a taxpayer." (Citations omitted; internal quotation marks omitted.) Sadlowski v. Manchester, 235 Conn. 637, 647, 668 A.2d 1314 (1995).
In this case, the developer states that the court's reasoning and decisions to grant the motions to dismiss before it in the Sanko-Lowry action and in this case are the law of the case and require dismissal for lack of standing. The developer also argues that collateral estoppel bars the plaintiffs from raising arguments already considered in the Sanko-Lowry action. To argue that they have standing notwithstanding the court's prior rulings, the plaintiff's frame their amended complaint as a distinct cause of action against a municipality to enforce the mandates of its charter and ordinances, rather than a zoning appeal. Thus, they conclude that the developer's arguments concerning standing are inapposite. Rather, the plaintiffs contend that their taxpayer status and alleged pecuniary loss and special damages are sufficient to establish their standing as taxpayers.
In addition, the developer states that the plaintiffs' demand to enjoin the transfer of the South Quaker Lane property should be dismissed as moot because the property has been duly transferred to the developer. In their memorandum of law in opposition to the developer and the municipal defendants' motions to dismiss, the plaintiffs counter that their amended complaint presents a live controversy because the injunctive relief sought can be accomplished through a court order negating the land sale to the developer and requiring return of the subject parcel and subsequent implementation of the ordinance. Courts do not decide "moot questions . . . disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) Brycki v. Brycki, 91 Conn.App. 579, 583, 881 A.2d 1056 (2005). In this case, however, the court need not resolve the question of mootness because the plaintiffs' amended complaint should be dismissed on other grounds discussed herein.
In Andross v. West Hartford, supra, 38 Conn. L. Rptr. 187, the plaintiffs also argued that "standing with respect to an independent action differs from aggrievement for the purpose of appeal." Id. The court, Beach, J., explained that "[i]f ability to contest zoning decisions were expanded in the manner suggested by the plaintiffs, all property owners in a designated zone, such as commercial, residential or industrial, would presumably have standing to contest any action involving any other property in that zone . . ., and, under the plaintiffs' reasoning, each owner would then have standing to contest, in an independent judicial action seeking injunctive and declaratory relief, any administrative action affecting any other property in the zone. We know that proposition is simply not so in zoning." Id. "[T]he ability judicially to contest agencies' decisions has been very carefully crafted for generations in order to balance different interests." Id., 188. The court determined that the plaintiffs did not have "a cognizable interest sufficient to bestow standing in the absence of more traditional qualification." Id. This court adopts the reasoning in the court's memorandum of decision dismissing the plaintiffs' claims as to the Walgreens property.
The developer's reliance on the law of the case doctrine is misplaced. "The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Detar v. Coast Venture XYVX, Inc., 91 Conn.App. 263, 267, 880 A.2d 180 (2005). "Generally, courts may only invoke the law of the case doctrine to examine a previous ruling if that review concerns an interlocutory order and the law of the case doctrine has no application to a final judgment." (Emphasis in original.) Scribner v. AIU Insurance Co., Superior Court, judicial district of New London, Docket No. 527659 (October 26, 1998, Martin, J.) ( 23 Conn. L. Rptr. 348, 348), citing Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982). "The decision [granting a motion to dismiss] is rendered in the form of a final judgment dismissing the action." (Internal quotation marks omitted.) Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16, 578 A.2d 646 (1990). Thus, the court's earlier judgments of dismissal, though relevant, do not dictate this court's decision on the developer and the municipal defendants' motions to dismiss.
The developer's collateral estoppel argument is improper in the context of a motion to dismiss. A motion to dismiss "should not be granted on other than jurisdictional grounds." (Internal quotation marks omitted.) Egri v. Foisie, 83 Conn.App. 243, 248, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). "Collateral estoppel does not implicate a court's subject matter jurisdiction." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 763 n. 7, 878 A.2d 384 (2005). Instead, "[c]ollateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense." Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992); see also Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985) ("Res judicata with respect to a jurisdictional issue does not itself raise a jurisdictional question . . . It may not be raised by a motion to dismiss"). (Citation omitted.) Because a motion to dismiss is an improper procedural vehicle to raise the defense of collateral estoppel, the court cannot reach the merits of the developer's argument.
In Andross v. West Hartford, supra, 38 Conn. L. Rptr. 187, the court, Beach, J., noted: Because "lack of standing was the basis of the prior decision [in the Sanko-Lowry action], it makes sense at least to consider res judicata." Id. Although the court, Beach, J., did not exclusively rely on res judicata or collateral estoppel, it found "no compelling practical reason for the parties to incur the time and expense of a fruitless quest." Id., 188 n. 4.
Thus, as a threshold matter, this court must determine whether the plaintiffs have taxpayer standing to pursue their claims for equitable relief. "A plaintiff who relies upon . . . [taxpayer] status in bringing an action to question some alleged illegal activity on the part of municipal officials must also prove that the transaction involved will probably result, directly or indirectly, in an increase in his taxes or would, in some other fashion, cause him irreparable injury." (Internal quotation marks omitted.) American-Republican, Inc. v. Waterbury, 183 Conn. 523, 526, 441 A.2d 23 (1981). This "condition ensures that our courts will be called upon to decide matters in which the litigants have a specific, legal interest, as distinguished from a mere general interest, in the subject matter of the controversy." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549, 427 A.2d 822 (1980). "Once a probable increase in his tax burden from the challenged activity has been shown, a plaintiff has passed the threshold of standing even though the pecuniary effect upon him may be extremely small." American-Republican, Inc. v. Waterbury, supra, 183 Conn. 526. "The alleged injury to the taxpayer has generally been demonstrated by evidence that the municipality has either directly increased taxes or appropriated moneys from local funds." Sadlowski v. Manchester, supra, 235 Conn. 648.
Here, the plaintiffs state that the allegedly unauthorized transfer of the South Quaker Lane property to the developer violates the ordinance, chapter VI, section 2 (f) of the West Hartford town charter and article first, § 1, of the Connecticut Constitution. They argue in their memorandum of law in opposition to the developer's and the municipal defendants' motions to dismiss that, as taxpayers, their allegations of decreased property value, traffic congestion, suburban sprawl and environmental degradation in the form of noise and pollution constitute damages sufficient to establish standing to challenge municipal misconduct. Yet, the plaintiffs nowhere allege that the property conveyance to the developer or construction of the condominium complex have directly or indirectly increased their taxes or otherwise injured them in their capacity as taxpayers. See Sadlowski v. Manchester, supra, 235 Conn. 647; Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695, 600 A.2d 1019 (1991) (refusing to grant injunction unless taxpayer proved "pecuniary or other direct loss in that capacity"). (Internal quotation marks omitted.) The allegations in the plaintiffs' amended complaint, even when viewed in their most favorable light, do not establish a "pecuniary or other great injury" resulting in a probable increase to their tax burden. See American-Republican, Inc. v. Waterbury, supra, 183 Conn. 526. Furthermore, the plaintiffs offered no evidence of such injury. The plaintiffs have, therefore, not met their burden to plead and prove standing as taxpayers. Accordingly, this court lacks subject matter jurisdiction to adjudicate their amended complaint.
"All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Conn. Const., art. I, § 1.
CONCLUSION
For the foregoing reasons, the court grants the motions to dismiss filed by the defendant Ginsburg Development CT, LLC, and the motion to dismiss filed by the defendants, town of West Hartford, municipal employees, Barry Feldman, James Francis, Tammy Daniels-Bradley and Norma Cronin.