Opinion
No. FST CV 06 5001543 S
October 2, 2007
MEMORANDUM OF DECISION
This action arises out of a long-standing conflict over a lease of several automobile parking spaces. The following procedural history is undisputed. In 1989, the plaintiffs, Alan S. Gordon and his company, 71 Arch Street, LLC, became successor lessees of sixteen parking spaces located on a nearby property, 60 Arch Street, Greenwich. In 2000, the defendants, John Fareri and his company, 12 Havemeyer Place Co., LLC, purchased the premises located at 60 Arch Street and became the successor lessors of the spaces. Thereafter, the parties became embroiled in litigation, brought by the present defendants, regarding the validity of the plaintiffs' lease of the parking spaces. Said litigation did not produce victory for the claimants.
The Town of Greenwich and James P. Maloney are also named defendants, but are not parties to the present motion to dismiss. Accordingly, all references hereinafter to the "defendants" are to John Fareri and 12 Havemeyer Place Co., LLC.
In 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 80 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003), the current defendants were seeking to evict the plaintiffs from the parking spaces by summary process, arguing that the parking lease was invalid because it violated zoning laws that required a certain on-site parking ratio requirements. According to the zoning laws, as a result of the parking lease, the defendants were short six parking spaces for their building. The court refused to render the lease void or voidable and held that the lease does not violate public policy. In 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 888 A.2d 141 (2006), the court again upheld the legality of the parking lease on the basis of res judicata.
On May 25, 2006, the plaintiffs commenced the present action by filing a seven-count complaint against the defendants. The counts in the complaint detail § 1983 violations, tortious interference with a contract, vexatious litigation, and civil conspiracy allegations. On October 4, 2006, the defendants filed an answer, special defenses and two counterclaims. In their first counterclaim, the defendants allege that the plaintiffs are using the basement of their building as office space in violation of the site plan. Further, they also allege that use of the basement is in violation of the Greenwich Building and Zoning Regulations and would require the addition of eleven additional parking spaces; the strain on parking has devalued the defendants' property. In their second counterclaim, the defendants allege that the zoning violation places a hardship on the entire community by creating an unapproved strain on parking. The defendants are seeking compensatory, punitive and injunctive damages.
On January 12, 2007, the plaintiffs filed a motion to dismiss both of the defendants' counterclaims, as well as their special defense of unclean hands. After defendants filed an opposition brief, the matter was heard on the short calendar of June 11, 2007.
"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 . . . 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The plaintiffs seek to dismiss the defendants' counterclaims on the ground that the defendants lack standing to assert their counterclaims. Specifically, the plaintiffs argue that the defendants do not have standing to maintain a private zoning enforcement action because they are not classically or statutorily aggrieved. The defendants counter that they are not directly seeking to enforce a zoning ordinance, but instead are seeking to "assert independently recognized common law claims of public and private nuisance."
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544 (2003), superseded by statute on other grounds as stated in Flanagan v. Blumenthal, 100 Conn.App. 255, 260 (2007). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201 (2006). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656 (1996).
It is necessary for the court to determine the exact nature of the defendants' counterclaims for the purpose of analyzing whether they have standing. The defendants' interpretation as to the nature of their counterclaims is unpersuasive. Assuming that the defendants assert private and public nuisance claims, these claims are expressly founded on the plaintiffs' alleged violation of a zoning regulation. Additionally, in their prayer for relief, the defendants are asking the court to enjoin the plaintiffs from using their basement for business purposes. Thus, the defendants' claims essentially constitute a private zoning enforcement action, in which private parties have brought suit to enjoin a zoning violation, where such a violation allegedly also constitutes a nuisance. See Cummings v. Tripp, 204 Conn. 67 (1987).
While the Supreme Court has not directly addressed the issue of standing in private zoning enforcement actions, it has addressed private zoning enforcement actions in an exhaustion of remedies context. See Cummings v. Tripp, supra, 204 Conn. 67. In Cummings, the court delineated the circumstances in which a Superior Court could obtain subject matter jurisdiction over private zoning enforcement actions without satisfying exhaustion requirements: "Though the primary responsibility for enforcing zoning regulations rests with the zoning commission, where a violation results in special damage to an individual, the injured party has a right to seek injunctive relief." (Internal quotation marks omitted.) Id., 78. The court determined that the trial court had subject matter jurisdiction over the private zoning enforcement action because "[i]n their complaint, the plaintiffs clearly allege[d] that they will be specifically and materially damaged by a violation of the zoning ordinances which has occurred . . . on another's land." (Internal quotation marks omitted.) Id., 76. The court underscored "the necessity for clear and precise allegations of specific and material claims of damage . . ." Id. The Appellate Court, in Miskimen v. Biber, 85 Conn.App. 615, 617 n. 3 (2004), cert. denied, 272 Conn. 916 (2005), interpreted the requirement of special damages allegations as one of standing: "The requirement of special damages serves to differentiate individuals specifically and materially damaged by a zoning ordinance violation from members of the general public who do not have standing."
In the present case, the plaintiffs rely upon several cases for the proposition that a party bringing a private zoning enforcement action must satisfy the requirements of classical aggrievement to establish standing to assert their counterclaims; none of the cases, however, is on point. Contrary to the plaintiffs' assertion, a showing of classical or statutory aggrievement is a jurisdictional prerequisite in zoning and other administrative appeals, which the defendants' counterclaims are not.
"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 75.
In Cummings, the plaintiffs' complaint stated in relevant part: "The continued illegal use, utilization and conversion of said property, by the Defendants, will cause the Plaintiffs irreparable and grievous injury, damage and harm . . ." (Internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 76 n. 9.
In the present case, the defendants' first counterclaim, viewed in the light most favorable to the defendants, does contain allegations that they sustained specific and material damages. Specifically, the defendants allege that the plaintiffs' zoning violation has "created an unapproved strain on parking" and has "devalued [the defendants'] property." One must therefore hold that the defendants do have standing to assert their first counterclaim, and the motion to dismiss it is denied.
The defendants' second counterclaim, however, does not contain allegations of damage specific to the defendants. The defendants argue that the second counterclaim contains a cause of action in public nuisance. In this counterclaim, the defendants allege that the plaintiffs' violation of the zoning regulation "places an undue hardship on the entire community, by . . . creating an unapproved strain on parking . . ." The allegations in this counterclaim do not meet the standing requirements for a private zoning enforcement action as enunciated in Miskimen, which held that allegations of special damages are required to separate individuals from "members of the general public who do not have standing." Miskimen v. Biber, supra, 85 Conn.App. 617 n. 3.
Even if the court were to construe the second counterclaim as simply a common-law public nuisance claim, the defendants would still lack standing. "[T]he Restatement (Second) Torts, [§]821C, in defining who can recover for a public nuisance, says [that] [i]n order to recover damages in an individual action for public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was subject to the interference." (Emphasis added.) B D Molded Products, Inc. v. Vitek Research Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0060362 (August 17, 1998, Corradino, J.) (23 Conn. L. Rptr. 90). The second counterclaim does not contain any allegations that the defendants suffered a different harm than other members of the public, as the defendants state that the zoning violation "places an undue hardship on the entire community." Thus, it is held that the defendants do not have standing to assert their second counterclaim, and it is dismissed.