Opinion
No. CV 08 4008291S
November 7, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, the planning and zoning commission of the town of North Stonington (PZC), appeals from the decision of the defendant zoning board of appeals of the town of North Stonington (ZBA), granting variances from the requirements of §§ 1004, 1001.4e, and 404 of the zoning regulations of the town of North Stonington for the defendant, Raspberry Junction Properties, LLC (Raspberry Junction). Raspberry Junction filed an application to the ZBA after the PZC enacted regulations imposing a nine-month moratorium on the acceptance and granting of applications for commercial uses and subdivisions in the town of North Stonington. The ZBA has filed a motion to dismiss the PZC appeal of the ZBA decision asserting that the plaintiff is not aggrieved, and therefore, the court lacks subject matter jurisdiction.
Peter C. Gardner requested a variance on behalf of Raspberry Junction Properties, LLC from the zoning regulations in the following ways: A reduction in the number of bus parking spaces required for the property owner's facility from four to zero; a reduction in the minimum number of automobile parking spaces from 215 to 175 an elimination of the requirement of site-plan approval for special permits required for certain activities.
"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.) Salgado v. Commissioner of Transportation, 106 Conn.App. 562, 566, 942 A.2d 546 (2008). "[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised . . . 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 non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . .
"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 . . . 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.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157-58, 856 A.2d 400 (2004).
The PZC argues that it is both classically and statutorily aggrieved, pursuant to General Statutes § 8-8(a)(1), by the decision of the ZBA because it is both the primary enforcement authority of the town's zoning regulations and is also charged by statute and regulation to enforce the orders and decisions of the ZBA. Therefore, under the circumstances of this case, the PZC is responsible for enforcing the regulation imposing a moratorium on PZC applications and with the conflicting obligation to enforce the decision of the ZBA granting the variances in question to Raspberry Junction. Relying on an interpretation of Tyler v. Board of Zoning Appeals, 145 Conn. 655, 145 A.2d 832 (1958), shared by some, the defendant argues that the plaintiff is not aggrieved because a ruling of its own is not at issue.
General Statutes § 8-8 regulates appeals from a municipal zoning commission to the Superior Court. Section 8-8(a)(1) describes an "[a]ggrieved person" as including "any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board." Section 8-8(b) provides in relevant part: "any person aggrieved by any decision of a board . . . may take appeal to the superior court for the judicial district in which the municipality is located . . ."
Specifically, in paragraph 4 of its appeal, the PZC alleges, "[t]he plaintiff is classically and statutorily (C.G.S. § 8-8(a) and (b)) aggrieved by the decision of the ZBA. The Planning and Zoning Commission of the Town of North Stonington (the `Commission') is charged with the enforcement of the town's zoning regulations and of any order, requirement or decision of the ZBA as part of the duties imposed on and the powers granted it by Chapters 124 and 126 of the General Statutes and by the Zoning Regulations of the Town of North Stonington, including without limitation section 201 thereof. Those obligations and powers include responsibilities for the content of the town's zoning regulations and the enforcement of violations thereof and the adoption and administration of the town's comprehensive plan and plan of conservation and development. The Commission is aggrieved statutorily (C.G.S. § 8-8(a) and (b)) and/or classically because of the foregoing obligations and powers and because the ZBA's decision to grant said variances was not in harmony with the general purpose and intent and the specific requirements of the statutes and the requirements of the zoning regulations and was not in conformity with the comprehensive plan or the plan of conservation and development."
The issue of when a planning and zoning commission may be aggrieved by a decision of a zoning board of appeals is addressed by the Supreme Court in Tyler v. Board of Zoning Appeals, supra, 145 Conn. 655. Since Tyler, several cases have debated the import of its holding in the context of the standing of a zoning commission to appeal from an order or decision of a zoning board of appeals of the same town.
In Tyler, the zoning commission of the town of Woodbridge and a member of that commission appealed to the trial court from a decision of the board of zoning appeals granting a variance. Tyler v. Board of Zoning Appeals, supra, 145 Conn. 655. The board contended in the trial court that "the plaintiffs were not aggrieved persons and therefore had no right of appeal." While the trial court held that the individual plaintiff had "a direct interest in the enforcement and preservation of the zoning ordinances and was therefore entitled to maintain the appeal," it did not address "the status of the zoning commission as an appellant." Based on a finding of plain error as to the trial court's failure to address the standing of the zoning commission and out of a general concern that "the statutory provisions prescribing the requirements as to parties entitled to appeal are being ignored," the Supreme Court identified the issue on appeal to be "whether either the individual plaintiff or the zoning commission is entitled to maintain this appeal." Id., 656-57. Most pertinent to the issue presented herein, in rejecting the standing of both plaintiffs, the court found that based on the zoning ordinances of Woodbridge, "[i]t [was] clear that the zoning commission . . . ha[d] no function in the enforcement of the requirements of the zoning board of appeals and no status under [General Statutes] § 379d to appeal a decision of the board." Id., 658. Further, citing Rommel v. Walsh, 127 Conn. 16, 23, 15 A.2d 6 (1940), the court stated that " apart from the provision in § 379d for action by an enforcement officer to protect the public interest, there may be occasion for a board whose ruling is in question to intervene, itself, to protect the public interest." (Emphasis added.) Tyler v. Board of Zoning Appeals, supra, 145 Conn. 659; citing Rommell v. Walsh, 127 Conn. 16, 23, 15 A.2d 6 (1940). The term "apart" is highlighted herein to emphasize that the Supreme Court was referring to at least two separate bases upon which a zoning commission could achieve status an appellant: 1) either pursuant to § 379d; or 2) when a ruling or order of its own is in question.
Section 379d is the predecessor to what is now § 8-8.
The Woodbridge zoning ordinance at the time the Tyler case arose provided that the regulations were to be enforced by their selectmen or their duly authorized agent, not the zoning commission.
"Section 379d of the 1955 Cumulative Supplement to the General Statutes provides for an appeal from the doings of a zoning board of appeals by any person `aggrieved by any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board.'" Tyler v. Board of Zoning Appeals, supra, 145 Conn. 657. Section 8-8(b) provides "any person aggrieved by any decision of a board . . . may take an appeal to the superior court." Under § 8-8(a)(1), "`[a]ggrieved person' . . . includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board."
Two appellate decisions have endorsed the foregoing interpretation of Tyler and support a finding that the PZC has standing based on the circumstances as alleged in the appeal, despite the moratorium. Dupuis v. Zoning Board of Appeals, 152 Conn. 308, 206 A.2d 422 (1965), involved an appeal by the town of Groton building inspector, in his capacity as zoning enforcement officer, from the granting of a variance to allow an addition to a nonconforming building. On appeal, the defendants claimed that the plaintiff was not aggrieved and lacked standing. The plaintiff claimed statutory aggrievement pursuant to § 8-8. The court found that since the plaintiff would have been required to issue the building permit pursuant to the decision of the zoning board of appeals, he was authorized to take the appeal in accordance with General Statutes § 8-8.
In Barton v. Zoning Board of Appeals, 87 Conn.App. 533, 866 A.2d 608 (2005), the zoning enforcement officer of the town of Watertown appealed from the judgment of the trial court dismissing her administrative appeal of a variance granted by the zoning board of appeals for lack of standing. The Appellate Court reversed. Citing Dupuis v. Zoning Board of Appeals, supra, 152 Conn. 310, the court held that the official charged by the town zoning regulations with enforcement of any order, requirement or decision of the zoning board of appeals "falls within one of the categories of aggrieved persons listed in § 8-8(a)(1) and has standing to appeal from the board's approval of the variance . . . Because the plaintiff is charged with enforcement of the board's decisions, she is statutorily aggrieved and has standing to appeal from the board's decision . . ." (Citation omitted.) Barton v. Zoning Board of Appeals, 87 Conn.App. 536. See also Planning Zoning v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. 566556 (July 28, 2004, Purtill, J.) (both zoning commission of town of North Stonington and zoning enforcement officer are both classically and statutorily aggrieved); Town of Lisbon Planning Zoning v. Town of Lisbon Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. 118275 (June 19, 2000, Purtill, J.) [ 27 Conn. L. Rptr. 474] (pursuant to General Statutes § 8-8(a)(1), the Planning Zoning Commission and ZEO are aggrieved persons and have standing to appeal); Bouvier v. Zoning Board of Appeals, 28 Conn.Sup. 278, 258 A.2d 546 (1969) (chair of planning and zoning commission and zoning enforcement officer of town of Monroe are aggrieved parties pursuant to General Statutes § 8-8).
In claiming that it stands for the limited proposition that a planning and zoning commission has no standing to appeal when a ruling or order of its own is not at issue, the defendants misinterpret the Tyler decision. In so doing, they rely on Planning Zoning Commission v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV 01 0808097 (May 17, 2002, Maloney, J.) ( 32 Conn. L. Rptr. 205). Although this court has great respect for the author of that decision, it must reject its rationale.
Relying on the narrow reading of Tyler, recited by the defendants, the court stated, "[t]he zoning commission may not take an appeal where a ruling or order of its own is not in issue . . . Restricting aggrievement to situations where the zoning board of appeals has overruled a specific order or ruling of the zoning commission is grounded in good sense and good government. Many if not all zoning commissions are charged with overall enforcement powers. If the Bouvier rule were followed, therefore, virtually all variances granted by zoning boards of appeal would be vulnerable to court challenge by zoning commissions based on nothing more than disagreement with the ZBAs' discharge of their own statutory duties. Such a rule would give inadequate recognition of the separate and independent powers of the zoning boards of appeal under [General Statutes § ] 8-6. It would also be a practice which is costly and often embarrassing to the municipality where one board sues another." (Citations omitted; internal quotation marks omitted.) Planning Zoning Commission v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV 01 0808097 (May 17, 2002, Maloney, J.) ( 32 Conn. L. Rptr. 205).
Pursuant to § 201 of the zoning regulations for the town of North Stonington, the zoning enforcement officer is charged with enforcement of the zoning regulations. Further, pursuant to Section 8-3(e) of the General Statutes, "[t]he zoning commission shall provide for the manner in which the zoning regulations shall be enforced." Therefore, overall authority rests with the PZC which is further required by statute to enforce the orders and decisions of the ZBA. At the time of the moratorium and the underlying decision by the zoning board of appeals, the position of zoning enforcement officer was vacant resting the total responsibility of enforcement of the zoning regulations in the hands of the PZC. As in Dupuis and Barton, because the plaintiff is charged with enforcement of the board's decisions, it is statutorily aggrieved and has standing to appeal from the board's decision.
For the foregoing reasons, the plaintiff is statutorily aggrieved as defined by § 8-8 by virtue of its enforcement power set forth in the zoning regulations of the town of North Stonington, and therefore, has standing to bring this appeal. Accordingly, the court has subject matter jurisdiction. The defendant's motion to dismiss is hereby denied.