Opinion
No. CV 08 4007556
November 19, 2008
MEMORANDUM OF DECISION
The plaintiff, Paul Hennen, commenced this appeal by service of process on the Pomfret planning and zoning commission (commission) on July 3, 2008. In his appeal, the plaintiff alleges that he owns property at 52 Putnam Road, Pomfret, Connecticut. He alleges that he was aggrieved by the commission's June 16, 2008 decision granting its own application to amend § 12 of the Pomfret zoning regulations. According to the appeal, the commission's "Home Based Business" amendment "proposed a dramatic expansion of permissible commercial and industrial uses in residential dwellings and permitted the use and storage of commercial and industrial vehicles or equipment at residential property." The plaintiff alleges that his property is subject to this amendment. Claiming that the commission's decision was arbitrary and capricious, the plaintiff requests that the court grant his appeal and reverse the commission's approval of the amendment.
On September 18, 2008, the commission filed a motion to dismiss the appeal and supporting memorandum of law on the ground that the plaintiff was not aggrieved by its decision and, therefore, did not having standing to bring the appeal. The plaintiff filed an objection to the motion to dismiss on October 2, 2008. The court heard this matter at short calendar on November 10, 2008.
Discussion
"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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, CT Page 18389 872 A.2d 408 (2005).
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). "In order to prevail on the issue of aggrievement, [t]he trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations . . . The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003).
"Two broad yet distinct categories of aggrievement exist, classical and statutory." Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). In his appeal, the plaintiff does not indicate whether he is claiming classical or statutory aggrievement. The plaintiff generally alleges that his "appeal is authorized by section 8-8 of the Connecticut General Statutes." The plaintiff's ground for the appeal is that he is a resident, taxpayer and property owner who is "subject to" and "adversely affected" by the amended regulation. He alleges that the amended regulation "will result in diminution of value to buildings and property situated in the town . . .?
In its memorandum of law in support of its motion to dismiss, the commission states that the plaintiff "cannot and has not claimed that he is statutorily aggrieved by the decision of the commission" and argues that the plaintiff was not classically aggrieved. In the plaintiff's objection to the motion to dismiss, however, the plaintiff argues that he has been both classically and statutorily aggrieved.
The plaintiff has pleaded sufficient facts to claim statutory aggrievement. General Statutes § 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . .? Section 8-8(a)(1) provides in relevant part: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
"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, 487, 815 A.2d 1188 (2003).
In Cole v. Planning Zoning Commission, 30 Conn.App. 511, 512, 620 A.2d 1324 (1993), a planning and zoning commission amended zoning regulations governing the issuance of special exception permits for the establishment of a commercial sawmill within R-3 and R-5 residential zones. The Appellate Court held that owners of land within these residential zones had standing to appeal the commission's decision under § 8-8(a)(1) because they owned land within the zone to which the amendment pertained. Id., 515. "In Cole, the amendment pertained to the entirety of the R-3 and R-5 zones because the process for obtaining a special exception permit for a commercial sawmill was amended for all landowners within those zones . . . Thus, the amendment changed the manner in which the plaintiff's could use their land and, as such, the Appellate Court held that the plaintiffs were statutorily aggrieved." (Citation omitted; emphasis in original.) Staunton v. Planning Zoning Commission, 271 Conn. 152, 163, 856 A.2d 400 (2004).
The Appellate Court applied the reasoning in Cole to an appeal of a planning and zoning commission's amendment of subdivision regulations. Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 285-86, 771 A.2d 167 (2001). The court held that a landowner is statutorily aggrieved when a general amendment to the zoning regulations specifically affects the landowner's property. Id., 296.
By contrast, the Supreme Court held that "when a zoning decision directly affects only a single property within a zone, the phrase `land involved in the decision of the board,' as used in § 8-8(a)(1), does not include the entire zone in which the affected property is located." Staunton v. Planning Zoning Commission, supra, 271 Conn. 161.
The plaintiff has sufficiently pleaded and proven statutory aggrievement because he alleges that he owns property within a zone to which a general amendment pertains. Because the court concludes that the plaintiff is statutorily aggrieved, it does not address whether the plaintiff was classically aggrieved. Therefore, the plaintiff has standing to bring the present appeal.