Opinion
No. CV07-4025243S
July 18, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
In this case, 415 Washington Avenue Partners, LLC (Washington) filed an application to amend the town's regulations to create a new zoning district to be known as a "Special Development District." The application was approved by the town planning and zoning commission and the plaintiff CMB Appreciation, LLC has appealed that approval.
The plaintiff claims it was aggrieved by the approval of the new district in the following paragraphs of its complaint:
"13. The plaintiff, CMB, is aggrieved by the decision of the Commission in that it is the owner of a property which is the subject of an application to create affordable housing pursuant to 8-30g of the Connecticut General Statutes, which application has been denied by the Commission and which denial is or will be the subject of an appeal to the Connecticut Superior Court.
14. The plaintiff, as the owner of the property, has a specific personal and legal interest in the Commission's decision which has been specifically and injuriously affected by such decision in that the amendment to the zoning regulations creating the SDD zone will impact traffic conditions, water availability, sewer availability, emergency services response times in a manner that will be unique to the plaintiff's property which is different from other residents and property owners in the Town of North Haven.
15. The plaintiff is both classically and statutorily aggrieved in that the SDD zone is both a "floating zone" which can attach to many properties in the Town of North Haven not yet identified by the Application and a regulation creating a new process and criteria for site plan applications."
It should also be noted that in subparagraph 1 of paragraph 12 of the complaint, the plaintiff, CMB, states "1. The Application allows for the sale of liquor to be exempt from the restrictions of the sale of liquor contained elsewhere in the zoning regulations."
(i)
The defendant Commission and Washington have filed motions to dismiss for lack of subject matter jurisdiction. The basic argument is that what the Commission did was create a "floating zone" and therefore the plaintiff is not statutorily or classically aggrieved. Since CMB is not aggrieved, the court has no subject matter jurisdiction. Stauton v. Planning and Zoning Commission, 271 Conn. 152, 157 (2004). The defendants rely on the cases of Schwartz v. Planning and Zoning Commission, 168 Conn. 20 (1975) and Sheriden v. Planning Board, 159 Conn. 1 (1969) for the proposition that the adoption of a floating zone cannot be appealed to the courts, see also Nick v. Planning and Zoning Commission, 6 Conn.App. 110, 113-14 (1986).
The plaintiff concedes that the zone created by the approval is a so-called "floating zone" but argues that it is in fact aggrieved and bases its position solely on the fact that as a taxpayer of the town it "has automatic standing to bring this action as the Commission's amendment of it's zoning regulations (created the floating zone) deals with the regulation and sale of liquor in the town." Section 5j of the regulation does in fact deal with the "sale of alcoholic liquor." In Alliance Energy Corp. V. Planning and Zoning Board, 262 Conn. 393, 400 (2003), the court said "Our longstanding interpretation of the term `aggrieved person,' as that term is defined in § 8-8(a)(1), is that `any taxpayer in a municipality has automatic standing to appeal from a zoning decision involving the sale of liquor in their community.'"
The plaintiff points to the language in Sheridan, 159 Conn. at page 13 and Schwartz, 168 Conn. at page 25 which discusses § 8-8 aggrievement: "Except in cases involving the sale of alcoholic beverages, aggrievement requires a showing that the plaintiffs have 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 the community as a whole, and that the plaintiffs were specially and injuriously affected in their property or other legal rights."
The defendants oppose the implications sought to be derived from the foregoing language. The defendant Washington closely examines the underlying facts in the Schwartz case to make this point.
Faced with the Supreme Court's decision in Sheridan, the plaintiffs in Schwartz argued that the uses permitted under the floating zone regulations at issue in that case included retail liquor shops and that, consequently, as resident taxpayers, they were automatically aggrieved by the Commission's decision to adopt such regulations. See Schwartz, Trial Court Mem. of Decision, attached at Tab A. The trial court is Schwartz concluded, however, that the plaintiffs were not automatically aggrieved as resident taxpayers because, inter alia, there was "no specific proposal for a liquor sales outlet in the general zone change." Id. The Supreme Court agreed with the trial court, holding that: "The plaintiffs' argument that they have standing to appeal as resident taxpayers who are aggrieved because the new shopping center districts may involve the sale of liquor is without merit. There is no sale of liquor involved in these appeals."
Schwartz, 168 Conn. at 26 (emphasis added).
The Supreme Court in Schwartz, however, never explicitly gave the reason why there could be no aggrievement despite the fact that the floating zone regulations included retail liquor stores and thus as taxpayers they had automatic aggrievement. The court will now try to explore why there was no aggrievement and thus no standing to appeal the floating zone approval despite the fact the plaintiffs there argued they had automatic standing as resident taxpayers because the sale of liquor could occur in the new district. It must be remembered that aggrievement is a subset of the concept of standing and within this concept justiciability and ripeness are also included or at least closely related to standing and the policies behind the standing requirement. In Cumberland Farms, Inc. v. Town of Groton, 46 Conn.App. 514, 571 (1997), the court said: "Our Supreme Court has consistently held that our courts may not render advisory opinions . . . `Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone . . .`Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits, it must be justiciable.'" In Conn. Foundry Co. v. Int'l Ladies Garments Workers Union, 177 Conn. 17, 19, (1979), the court was speaking of appellate jurisdiction but made a general comment regarding justiciability that would apply at the trial level: "In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . ." Or perhaps more to the point, the machinery of the courts should not be put into operation where there may be no need to do so because no one's interest may be harmed.
And that is the whole point of not allowing appeals from the approval of floating zone regulations. As said in Nick v. Planning Zoning Commission supra, a floating zone "has no defined boundaries. It is conceived as floating over the entire area where it may actually be established . . . As no particular area or property is affected solely upon the amendment of municipal zoning regulations which establish a floating zone, there can be no aggrievement, factual or statutory, until such zone is mapped on to a particular property." 6 Conn.App. at p. 113; cf. Pleasant Valley NBRH Ass'n v. Planning and Zoning Commission, 15 Conn.App. 110 (1988) where the court says such a zone "floats above the town, until an applicant demonstrates that the detailed conditions pertaining to establishment of the zone can be met," id. p. 115. As Fuller says in Land Use and Practice, Vol. 9, § 3.8 page 42 as to floating zones: "There is no particular area or property that is affected by them and it is uncertain whether the regulations will ever be applied to a particular piece of property" — or the court might add, any piece of property. As Nick points out, when the zone does "float down" and is applied to particular property, then classic or statutorily aggrieved parties can appeal including, of course, resident taxpayers where the zoning decision as applied to delineated property involves the sale of liquor.
Finally, it is also true that the creation of a floating zone is a legislative activity Homart Development Co. v. Planning and Zoning Commission. 26 Conn.App. 212, 214 (1991). It would be a gross interference with such activity if appeals were allowed to be taken from the mere creation of such zones and the prematurity and non-justiciability of such an appeal is evident, because even though a landowner meets the conditions of the floating zone, the zoning board retains legislative discretion to impose additional limitations than those set out in the earlier approved floating zone, see Homart Development Company at 26 Conn.App. Page 216, Sheridan v. Planning Board, 159 Conn. at page 16.
In any event, for the foregoing reasons, the motions to dismiss are granted.