Opinion
No. CV 084033705
May 5, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #130
The defendant, Meriden Zoning Board of Appeals (ZBA), moves to dismiss this administrative appeal on the ground that the plaintiffs, Dominick Caruso, James Anderson and the City of Meriden, lack standing because they are not aggrieved. The plaintiffs filed an Objection in which they outlined the ways in which they claim to have been legally aggrieved by the actions of the defendant. This court held an evidentiary decision on January 20, 2011. For the reasons set forth in this Memorandum of Decision, the court denies the motion to dismiss and sustains the plaintiff's objection.
Dominick Caruso is the director of planning and the department of development and enforcement for the city of Meriden. James Anderson is the zoning enforcement officer and environmental planner for the city of Meriden. Along with the City of Meriden, they commenced the present land use appeal by service of process on the defendants, the ZBA and Mark Development, LLC (Mark Development) on October 1, 2008. In this action, the plaintiffs claim that the ZBA improperly approved the use variance application of Mark Development to allow for automotive sales and services on property owned by Mark Development and located at 850 Murdock Avenue in Meriden (the property). The plaintiffs also allege that the ZBA improperly granted location approval for a used auto dealership when the property is located in the Regional Development District (RDD) of Meriden, which does not permit automotive sales and services facilities.
On November 1, 2010, the ZBA filed a motion to dismiss the plaintiffs' appeal for lack of subject matter jurisdiction, on the ground that the plaintiffs lack standing because they are not aggrieved. On December 10, 2010, the plaintiffs filed an objection to the ZBA's motion to dismiss. On January 4, 2011, the ZBA filed a reply to the plaintiffs' objection. The court held an evidentiary hearing on January 20, 2011.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010). "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.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). "[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
In its memorandum of law in support of its motion to dismiss, the ZBA argues that the plaintiffs lack standing because they are not aggrieved. The ZBA contends that: (1) Caruso is not aggrieved because he is not responsible for the enforcement of the zoning regulations; (2) Anderson is not aggrieved because, while he is responsible for the enforcement of the zoning regulations, he is not enforcing any part thereof; and (3) the city of Meriden, as the zoning commission, is not aggrieved because no ruling of its own is at issue in this appeal.
In response, the plaintiffs counter that both Caruso and Anderson are responsible for the enforcement of the zoning regulations and the ZBA's decisions. They contend that since they are called upon to enforce the ZBA's decisions, which are contrary to the zoning regulations, they are statutorily aggrieved. The plaintiffs further argue that Caruso is classically aggrieved and that he has standing to bring this appeal as he was authorized to do so by the city council of Meriden. Finally, the plaintiffs note that the zoning commission is not a party to this appeal and therefore the city of Meriden, as a municipality, is always entitled to represent the interests of the public by participating as a party to an appeal.
In reply, the ZBA argues that none of the plaintiffs have been statutorily aggrieved because the ZBA acted within its authority to grant a use variance under the zoning regulations and because, at this stage of the proceedings, none of the plaintiffs will be called upon to enforce the ZBA's decisions. The ZBA further argues that a municipality is not included as an aggrieved person under the statute. Moreover, the ZBA claims that none of the plaintiffs have demonstrated that they have been classically aggrieved because none have shown a specific, personal and legal interest in the subject matter of the ZBA's decisions that has been specially and injuriously affected thereby.
"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." (Internal quotation marks omitted.) PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 705, 960 A.2d 563 (2008). Therefore, "[p]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [because] [i]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate 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 . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, supra, 286 Conn. 702.
If one of the individual plaintiffs is aggrieved, "it is not necessary to resolve whether the other plaintiffs are aggrieved . . ." Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 529 n. 3, 600 A.2d 757 (1991). Nevertheless, the court will consider the claims of aggrievement made by all three plaintiffs.
CARUSO AND ANDERSON
Since Caruso and Anderson rely upon a similar ground of aggrievement, the court will consider them together for the sake of the ZBA's motion to dismiss.
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board may take an appeal to the superior court . . ." In this regard, an aggrieved person "includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board . . ." General Statutes § 8-8(a)(1). In Barton v. Zoning Board of Appeals, 87 Conn.App. 533, 536, 866 A.2d 608 (2005), the Appellate Court considered § 8-8 and concluded that the zoning enforcement officer for the town of Watertown, who was charged with enforcement of the town's zoning regulations, was statutorily aggrieved by the approval of a use variance by the town's zoning board of appeals because "she must implement the board's decision to grant the variance" and thus "has standing to appeal from the board's approval of the variance." In determining whether the plaintiff was aggrieved, the Appellate Court did not consider whether a zoning regulation had in fact been violated, but rather, constrained itself to the narrow issue of whether the plaintiff was required to implement the decision of the zoning board of appeals.
Similar to the present case, the use variance to the zoning regulations permitted the sale of used cars on a piece of property.
The ZBA argues, however, that Barton requires a violation of the zoning regulations in order to establish aggrievement. Nevertheless, this court finds that Barton does not stand for this proposition as the alleged violations of the zoning regulations for the town of Watertown are neither mentioned nor considered in the decision. Nevertheless, it bears noting that the plaintiffs have alleged that the ZBA violated §§ 213-57 and 213-59 of the Meriden zoning regulations.
In the present case, both Caruso and Anderson testified at the hearing held on January 20, 2011. Caruso testified that he is the director of the department of development and enforcement for the city of Meriden. The plaintiffs submitted the job description for the director of development and enforcement, which states that he enforces "all laws and ordinances which pertain to [h]ousing, [b]uilding, and the [n]eighborhood [p]reservation program." Section 3-22 of the Meriden code provides in relevant part: "The [d]epartment of [d]evelopment and [e]nforcement shall be responsible for the enforcement of all legislation, whether federal, state or city, pertaining to buildings and property maintenance, and it shall have and may exercise all power and authority . . . for the inspection, regulation and control of buildings, dwelling houses and other structures . . . for the granting of permits to erect . . . any building within the limits of [the city of Meriden] . . ."
Anderson testified that he is the zoning enforcement officer for the city of Meriden. The plaintiffs submitted the job description for the zoning enforcement officer, which states that he is responsible for enforcement of the zoning regulations and that his "[d]uties include issuance of permits, inspection of premises, investigation of complaints, preparation of enforcement documentation and coordination of enforcement activities." Section 213-47 of the Meriden zoning regulations provides: "These regulations shall be enforced by the [z]oning [e]nforcement [o]fficer . . . or his/her authorized official. The [z]oning [e]nforcement [o]fficer is authorized to cause any building, structure, place, premise or use to be inspected or examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of this chapter."
Both Caruso and Anderson testified that they were charged with the enforcement of the zoning regulations for the city of Meriden and with the enforcement of the ZBA's decisions. This court finds the testimony of Caruso and Anderson to be credible and undisputed. Therefore, pursuant to Barton and § 8-8(a)(1), both Caruso and Anderson are statutorily aggrieved in that they are charged with the enforcement of the zoning regulations for the city of Meriden and with the enforcement of the ZBA's decisions. As a result, both Caruso and Anderson have standing to appeal the ZBA's decisions.
As a result, the court need not consider the other grounds of aggrievement for Caruso raised in the plaintiffs' memorandum of law.
CITY OF MERIDEN
The Supreme Court has noted that a "municipality concerned is always entitled to represent [the public interest] by participating as a party to an appeal." Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958) (as distinguished from town board whose ruling must be in question in order to appeal); see also DeRito v. Zoning Board of Appeals of Middlebury, 18 Conn.App. 99, 103, 556 A.2d 632 (1989) (concluding that standing of zoning enforcement officer "presents no justiciable controversy" since town, as municipality, is always entitled to represent public interest). While a municipality has an interest in protecting its regulations; see DeRito v. Zoning Board of Appeals, supra; other interests may support aggrievement on the part of a municipality. See Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806 (1953) (town had interest in keeping public green free from possible sources of danger including those provided by presence of nearby gasoline station). In Milford, the determination as to whether the town was aggrieved was separate and distinct from whether the commissioner of motor vehicles acted unlawfully in issuing a license for the sale of gasoline on the subject property.
In the present case, the city of Meriden, as opposed to the zoning commission, is a named plaintiff and, therefore, pursuant to Tyler and its progeny, is entitled to represent the public interest by participating as a party to this appeal. In their appeal, the plaintiffs allege that the ZBA's decisions conflict with the intent of the RDD zone, adversely affects the city's comprehensive zoning plan, are not in harmony with the purpose and intent of the zoning regulations, and will adversely affect the public health, safety, convenience, welfare and property values. Furthermore, the plaintiffs allege that the ZBA did not comply with §§ 213-57 and 213-59 of the Meriden zoning regulations. As a result, this court concludes that the city of Meriden has standing to appeal the ZBA's decisions.
CONCLUSION
For the foregoing reasons, this court finds that it has subject matter jurisdiction over the plaintiffs' appeal and the ZBA's motion to dismiss is denied.