Opinion
No. CV09-4018422S
July 21, 2009
MEMORANDUM OF DECISION
This matter is before the court on the defendant's motion to dismiss. The plaintiffs, Sebastian Douglas, Gloria Lynn, Elizabeth Wasiutynski, Bohdan Wasiutynski, Angela Maggi, Judith Wick, Glenn LaFreniere and Jonathan Andrew filed the original action, by verified complaint, November 24, 2008. The defendant, Watertown Planning and Zoning Commission, filed the motion to dismiss now at issue (No. 102) February 6, 2008. The plaintiffs filed, and were granted, an extension of time to respond to the defendant's motion. The plaintiffs filed their objection to the motion to No. 102 March 2, 2009 (No. 104). The defendant filed a reply to the plaintiffs' objection March 26, 2009. Oral argument was heard May 26, 2009 at short calendar. The plaintiffs allege the following in their appeal/complaint. The plaintiffs are land owners in the Town of Watertown. The defendant proposed an amendment to the zoning regulations of Watertown to create an overlay zone or floating zone allowing for the development of "high quality retail and office development" in the area generally described as land north of Route 262, south of Echo Lake Road and west of Route 8, consisting of approximately 150 acres. After a variety of hearings, the defendant enacted the amendment on November 10, 2009 and published notice on November 13, 2009 in the Waterbury Republican-American newspaper.
The term overlay zone is not clearly defined by either party and this court found the term in only three published cases. Heaithaus v. Planning Zoning Commission, 258 Conn. 205, 779 A.2d 750 (2001). An overlay zone has been considered a "floating zone," which is a zone that floats "over the entire area where it may eventually be established" or a "special permit." Id., 216-18. In the present case, the floating zone is a more proper designation, as this overlay zone is alleged to create a zone which will allow for zoning changes. It is not alleged it will the immediate affect the land owner's use of the land, which is more characteristic of a special permit.
Douglas, Lynn, the Wasiutynskis, Maggi, Wick and LaFreniere (the intervening plaintiffs) were all recognized as intervening petitioners during the zoning hearing pursuant to General Statutes § 22a-19(a). In their portion of the motion to dismiss, they claim inadequacies in the special permit process and traffic volume will have a severe environmental impact and thus are aggrieved because of their intervenor status at the hearings. Andrew (the landed plaintiff) claims aggrievement because he is the owner of property that is within, abuts or is in 100 feet of the area identified by the defendant for the overlay zone. All plaintiffs claim aggrievement because the approval of the amendment was illegal, arbitrary, capricious, in abuse of its discretion and in violation of its own regulations and applicable state statutes. The defendant argues that the plaintiffs are not aggrieved and thus lack standing to bring this case. The defendant has moved to dismiss this case, which is the subject of this decision.
"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 . . . and 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.
"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.
"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 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 . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected 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." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-87, 815 A.2d 1188 (2003).
The intervening plaintiffs claim aggrievement and thus standing through General Statutes § 22a-19(a). Section 22a-19(a) provides in relevant part: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." (Emphasis added.)
The Supreme Court has recently held that intervening parties to an administrative appeal must show the conduct they contest is actually impacting the environment. The Court said "[W]e previously have concluded that § 22a-19 confers standing on a broad range of individuals, entities and government agencies to intervene in both administrative proceedings and `subsequent judicial review' thereof on appeal. We also consistently have acknowledged, however, that an intervenor's standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute and only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene . . .
"[T]here can be little doubt that . . . intervenors are persons who legally may intervene in an administrative proceeding and appeal therefrom under § 22a-19(a), for the statute grants that power to `any' individual . . . The sole question then is whether the [intervenors' issues] are those properly within the scope of the statute." Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 158, 953 A.2d 1 (2008).
In the present case, the intervening plaintiffs' issues are procedural and environmental. The procedural issues challenge the legality of the administrative hearings regarding the overlay zone. The Supreme Court was clear in Pond View, stating that when "issues are not environmental issues traditionally within the scope of § 22a-19" they cannot be raised by a party granted intervenor status under § 22a-19 on appeal. Id., 159. "Although this court never expressly has concluded that standing under § 22a-19 does not include standing to raise any related procedural issues, it is axiomatic that the statute encompasses substantive environmental issues only, and the court repeatedly has declined to consider whether procedural issues are covered." Id., 159.
Continuing in Pond View, the court stated that any challenge to the environmental merits of the commission's decision must relate to the direct conduct of the commission in this specific instance. Id., 160. If this conduct does not relate directly to the impact on the environment, then the intervening party cannot bring an appeal. Id., 160-61.
In the present case, the court finds that even considering the complaint in the light most favorable to the intervening plaintiffs and admitting all well-pleaded allegations in the complaint, the court cannot find that the intervening plaintiffs have standing. First, under Pond View, the intervening plaintiffs cannot be aggrieved by the procedural issues they challenge and thus cannot have standing on this issue. Further, the conduct of the defendant, even in the light most favorable to the plaintiff, cannot be found to be harmful to the environment. The creation of an overlay zone is not conduct which causes environmental harm. The plaintiff does not allege that the overlay zone alone allows parties to develop the areas at issue beyond their current zoning designations. Though future decisions by the defendant may provide aggrievement, conduct effecting the environment does not exist in the present case as alleged in the intervening plaintiffs' complaint.
The landed plaintiff claims aggrievement through the fact his land is within 100 yards of the area to be effected by the newly created overlay zone. The Supreme Court has succinctly stated "there can be no aggrievement when the zoning regulations of a municipality are amended in such a way that no particular area or property is affected." Schwartz v. Town Plan Zoning Commission, 168 Conn. 20, 23, 357 A.2d 495 (1975). Recently revisiting this principle, the Supreme Court stated that it "stands for the proposition that a prospective, personal and legal interest in the subject matter of a zoning commission's decision does not satisfy the first prong of the test for classical aggrievement." (Emphasis in original.) Harris v. Zoning Commission, 259 Conn. 402, 410 n. 12, 788 A.2d 1239 (2002).
In the present case, the landed plaintiff owns land in an area, which the commission added an overlay zone. The action of passing an amendment creating an overlay zone is prospective. The landed plaintiff's complaint does not allege any immediate conduct or harm, which directly affects his property.
The plaintiffs put much faith in the cases Hayes Family Ltd. Partnership v. Planning Zoning Commission, 98 Conn.App. 213, CT Page 12240 907 A.2d 1235 (2006), appeal denied, 281 Conn. 904, 916 A.2d 44 (2007) and Harris v. Zoning Commission, supra, 259 Conn. 402. This reliance is incorrect, as these decisions are distinguishable from the present case. In Hayes, the court found that the action taken by the zoning commission had "the effect of reducing substantially the number of units that potentially may be constructed on the subject property." Hayes Family Ltd. Partnership v. Planning Zoning Commission, supra, 217. Further, the plaintiff in Hayes, filed an application to change the regulations and it was from this application that the plaintiff appealed. Id., 218. In Harris, the action taken by the zoning commission was an amendment, which "excluded certain types of land from the calculation of the minimum lot area required for the purposes of residential development." Harris v. Zoning Commission, supra, 259 Conn. 404. The court found the plaintiffs in Harris, both statutorily and classically aggrieved because they showed how this amendment would limit their land development and the number of structures, which could be developed on their land. Id., 408.
In the present case, the landed plaintiff has not shown any aggrievement. The amendment creating the overlay zone does not affect the plaintiff's ability to develop, as was the case in Hayes and Harris. It puts no limitation on the plaintiff's land. Future conduct by the commission may create aggrievement, but that is not the case as alleged by the plaintiff in his complaint. In the present case, the court finds that even considering the complaint in the light most favorable to the landed plaintiff and admitting all well-pleaded allegations in the complaint, the court cannot find that the landed plaintiff has aggrievement and thus is without standing.
Because the court does not find that any of plaintiffs have been aggrieved, and thus none of the plaintiffs have standing, the court does not need to reach the plaintiffs' other allegations. The plaintiffs' objection to the motion to dismiss is overruled. The defendant's motion to dismiss as to the entire complaint is granted.