Opinion
No. CV 03 0830228 S
November 1, 2004
RULING ON MOTION TO DISMISS
The defendants' motions to dismiss are granted. In the interest of time, I shall not publish a comprehensive memorandum of decision. It has been represented that the developer-defendant is interested in proceeding with the project, which was approved more than a year and a half ago and which was the subject of a prior action decided by Judge Berger, CV 03 0827307 S (" Sanko-Lowry II"). Additionally, a hearing on an application for a temporary injunction was scheduled to be heard on November 2, 2004. In the circumstances, it seems appropriate that brevity trump exhaustive written analysis.
This ruling concerns only the "Walgreens" property. At oral argument it was represented that the "GDC" project, also the subject of this action, was in the process of negotiation and no ruling was requested as to that motion to dismiss, which is also pending.
The proceedings in this action have moved rapidly since the application for a temporary injunction regarding the Walgreens project was filed on September 2, 2004. A hearing on this motion to dismiss occurred on October 18, 2004, after a scheduling status conference. The parties have agreed not to begin physical work on the project while the current motion is pending.
I have thoroughly read the pleadings, briefs and authority cited by both parties, as well as the pleadings and decisions in Sanko-Lowry I and II, and I adopt the positions stated therein by the defendants with the following items of emphasis and qualification. Fundamentally, the plaintiffs have not alleged or otherwise shown that they have been specifically harmed in a way substantially different from the general public.
First, the item of emphasis. A review of the pleadings and decision in Sanko-Lowry II compels me to find that the defendants' position in this matter is fortified by concepts of collateral estoppel and res judicata. The parties are the same and the issues are the same. Although the plaintiffs argue that the prior case was an appeal from a zoning decision and this is an original action seeking injunctive and declaratory relief, the pleadings reveal that injunctive and declaratory relief was sought in Sanko-Lowry II. Only the first count concerned a zoning appeal; the remaining counts claimed injunctive and declaratory relief in language almost identical to that used in this case. Judge Berger rejected the "zone of interests" test as applied to zoning issues and found that the plaintiffs lacked standing to pursue the matters in court. Because the parties and issues are the same, res judicata bars reconsideration. Similarly, because all of the plaintiffs in this action were plaintiffs in the former action, and the standing issues were decided against them, collateral estoppel bars this second action.
Though Judge Berger's decision did not resolve the merits of the underlying dispute, it did resolve the merits of the issue of standing, both as to the count styled the appeal and to the counts seeking the same relief requested in this case.
It is, of course, ordinarily true that res judicata is a defense rather than a jurisdictional bar. In this circumstance, however, where lack of standing was the basis of the prior decision, it makes sense at least to consider res judicata. If, for instance, I found standing, putting aside the prior case, I would then be compelled at a later time to enter judgment on the merits because of a special defense claiming that the prior case between the parties found a lack of standing. Although the latter course may be conceptually more pure, there is no compelling practical reason for the parties to incur the time and expense of a fruitless quest. As stated above, of course, I do not rely entirely on res judicata, or collateral estoppel, in any event.
The plaintiffs argue that the action is not so barred, because standing with respect to an independent action differs from aggrievement for the purpose of appeal. Whatever the general validity that proposition might have, I have not been directed to nor have I found one case in which a party who was not aggrieved was found to have standing to contest in court a zoning decision by virtue of a zone of interests analysis. If 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. After all, zoning ordinances are enacted in part to benefit owners in a particular 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. See, e.g., Lewis v. Swann, 49 Conn.App. 669 (1998). If such an expansion were to be accomplished, I do not believe it is appropriately accomplished by a trial court. It is more likely that the zone of interests test, applied in this context, is more narrowly construed, so that the practical affect in post-administrative proceedings is the same as aggrievement. And Judge Berger, of course, considered and rejected a broad interpretation of the zone of interest test in the same context as we have.
Judge Berger's decision was necessary to the disposition of that decision, because he dismissed all of the counts, including those seeking the same relief sought in this case, because of a lack of standing.
Second, the qualification. Generally, the authority cited by the plaintiffs does not help them to persuade me on the question of standing. Gladysz v. Planning Zoning Commission, 256 Conn. 249 (2001), for example, does state that aggrievement for the purpose of appeal is different from standing. The "standing" there under consideration is not, however, standing to bring the court action after the zoning decision, but rather is standing of the developer to apply to zoning authorities for approval. The specific interest in the controversy may be equitable and contingent for the purpose of standing to apply for approvals, while "aggrievement" for purposes of appeal comprises the traditionally quite strict requirements.
Lewis v. Swann, supra, is also inapposite. In Lewis, a developer sought injunctive relief from town zoning authorities and alleged that after a site plan had been approved, a competitor's project was being constructed in a manner which violated zoning regulations. Thus, the action did not contest the original action of the local agencies, but rather claimed that regardless of the correctness of the administrative action, the actual construction did not conform with zoning requirements. The Appellate Court, although mentioning "zone of interest" considerations (at 675-76), held that in zoning, the public at large was the intended beneficiary, and without a particularized harm, such as nuisance affecting land of the plaintiff or statutory authorization of the Superior Court action, the plaintiff had no standing, even if he had interests that would be adversely affected by his competitor's continuing construction. Similarly, Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531 (2003), was simply another instance where a factual analysis of competitors' situations led to the conclusion, upheld on appeal, that there was no standing. There is, in short, no persuasive precedent cited where a party was not classically or statutorily aggrieved and yet was able to pursue an independent challenge to the decision of a zoning authority.
The qualification is that the plaintiffs' argument is tantalizing and in a different context may be persuasive. If residents of a particular neighborhood are statutorily, or similarly, entitled to a particularly defined benefit, and governmental action deprives them of that benefit, they may, as a generalized proposition, have standing to compel the benefit to be bestowed. In the zoning context, however, the ability judicially to contest agencies' decisions has been very carefully crafted for generations in order to balance different interests. In this context, I do not believe that residents of a "neighborhood" have a cognizable interest sufficient to bestow standing in the absence of more traditional qualification.
The motions to dismiss are granted.
Beach, J.