Opinion
No. CV 06 4009132
September 21, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101
The plaintiff, Robin E. Novak, appeals from the decision of the defendant, the Woodbury zoning commission, to amend the Woodbury zoning regulations. The defendant has moved to dismiss, pursuant to Practice Book § 10-30, on the ground that the court lacks subject matter jurisdiction over the appeal because the plaintiff lacks standing.
I FACTS
In the complaint, the plaintiff alleges the following relevant facts: The plaintiff is an owner of real property located in Woodbury, which adjoins property owned by the Woodbury Cemetery Association (association). On December 13, 2005, the defendant commission adopted amended zoning regulations that changed the definition of the term "structure." Prior to the commission's adoption of the amended regulations, the regulations defined "structure" as "[a]nything constructed or erected which requires location on the ground or is attached to something having a location on the ground." (Internal quotation marks omitted.) The amended regulations define the term "structure" as "[a] combination of matterials assembled to give support or shelter such as buildings, towers, masts, sheds, roofed storage areas, and retaining walls and fences more than six (6) feet in height; this will normally include anything constructed or erected on the ground the use of which requires essentially permanent location on the ground or attachment to something having location on the ground, as determined by the Zoning Commission. All buildings shall be considered structures." The plaintiff further alleges that this amended definition in the regulations may be used arbitrarily, illegally and with abuses of discretion to permit the association to continue its conduct of unlawfully locating internments and monuments within the fifty-foot front yard setback of an R-40 zone without proper land use approval, site plan approval or compliance with landscape protection requirements for the surrounding neighborhood. On December 24, 2005, the commission published notice of its decision.
On January 5, 2006, the plaintiff commenced this appeal by serving two copies of process on the Woodbury town clerk. Subsequently, on February 3, 2006, the defendant commission filed a motion to dismiss the plaintiff's appeal for lack of subject matter jurisdiction on the ground that the plaintiff lacks standing to appeal because she is not aggrieved. The court heard oral argument on the motion to dismiss on May 15, 2006.
General Statutes § 8-8(b) requires that an appeal from any board's decision "shall be commenced by service of process in accordance with subsections (f) and (g) within fifteen days from the date that notice of the decision was published." Section 8-8(f)(2), provides in relevant part: "For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." Section 52-57(b)(5), provides in relevant part that process shall be served "upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency "As this appeal was commenced within the statutory requirements of §§ 8-8 and 52-57, the court finds that the appeal is timely and that service was proper.
II DISCUSSION
"Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The objection of want of jurisdiction may be made at any time . . . [a]nd 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." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).
"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy v. New London, 265 Conn. 423, 430 n. 12, CT Page 17615 829 A.2d 801 (2003). Nevertheless, "[i]n ruling on a motion to dismiss, the court must take the facts alleged in the complaint as true, construing them in the manner most favorable to the pleader." (Internal quotation marks omitted.) AAIS Corp. v. Dept. of Administrative Services, 93 Conn.App. 327, 328, 888 A.2d 1127, cert. denied, 277 Conn. 927, 895 A.2d 798 (2006).
In support of its motion to dismiss, the defendant argues that the plaintiff has failed to allege facts sufficient to demonstrate that she is either classically or statutorily aggrieved. It also maintains that a finding of classical or statutory aggrievement would have a "significant negative impact on the ability of local zoning boards to amend their local zoning regulations as the need to do so arises." Further, it contends that the amendment does not confer additional power on the commission. Finally, it argues that the plaintiff's claims of harm are based on mere speculation. The plaintiff counters that she has alleged sufficient facts to establish statutory and classical aggrievement.
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "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." (Internal quotation marks omitted.) Id., 665.
A Classical Aggrievement
"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." Moutinho v. Planning Zoning Commission, 278 Conn. 665.
The defendant first argues that the plaintiff has not alleged sufficient facts to sustain her burden of demonstrating classical aggrievement. It contends that the first prong of the classical aggrievement test is not satisfied because the amended regulations are of general applicability and do not affect any particular parcel of land, insofar as "structures exist or can be placed on almost all, if not all, properties in Woodbury." (Defendant's memorandum, p. 6.) It notes that the plaintiff alleges in the complaint that her property "may be adversely impacted by the Amended Regulations and the uses that other property owners in the Town of Woodbury may make of their real properties located in said town," and that the amended definition of the word "structure" may be used arbitrarily, illegally and with abuses of discretion to permit a neighboring property owner to use its property in undesirable ways. Nevertheless, it contends that the plaintiff's arguments could be advanced by every Woodbury homeowner since "the possibility always exists that one's neighbor could attempt to apply a regulation in a manner that would harm one's property interests." (Defendant's memorandum, p. 7.) Consequently, the defendant argues, the plaintiff has not alleged sufficient facts demonstrating that she has a specific interest in the subject matter of the appeal that is different from all property owners in Woodbury. Further, noting the plaintiff's use of the words "possibility" and "may" in conjunction with the alleged potential application of the amended definition to the association's property, the defendant argues that the plaintiff's allegations are speculative and that such claims are not sufficient to satisfy the second prong of the classical aggrievement test, which requires the plaintiff to demonstrate that a specific personal and legal interest has been specially and injuriously affected by the decision.
The plaintiff counters that she has alleged sufficient facts to establish classical aggrievement. She maintains that her allegations show that she has a specific, personal and legal interest in the subject matter of the commission's decision because she has alleged that the decision is part of a plan or scheme to help an adjoining property owner bypass Woodbury's zoning requirements pertaining to front yard setbacks, site plan approval and compliance with landscape protection requirements. She argues that she is being specially and injuriously affected by the decision because she (1) is not receiving the same rights and protections afforded to others under the regulations, (2) has to or may have to endure uses by an adjoining property owner that contravene the zoning regulations and (3) may suffer a diminution in the value of her property. In support of these arguments, she analogizes the general amendment of "structure" to amendments to zoning regulations discussed in Harris v. Zoning Commission, 259 Conn. 402, 788 A.2d 1239 (2002), and Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 771 A.2d 167 (2001).
"[T]he amendment to the definition of the term "[s]tructure" contained in the Amended Regulations was adopted as part of a plan or scheme to benefit the WCA so as to permit its aforementioned unlawful use of the WCA [p]roperty . . ." (Complaint, Paragraph 6.)
The court notes that the complaint does not include any allegations pertaining to diminution of the value of the plaintiff's property.
The first prong of the classical aggrievement test is satisfied when the plaintiff pleads "a specific personal and legal interest in the subject matter of a zoning commission's decision . . . [but that interest] cannot be an interest shared by the community as a whole." Harris v. Zoning Commission, supra, 259 Conn. 414. "General amendments to land use regulations generally do not comply with the first part of the [classical aggrievement] test." Park City Realty v. Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 93 0307625 (March 25, 1994, Fuller, J.). Nevertheless, general amendments that expressly or effectively apply to a portion, as opposed to all, of a town's parcels may satisfy the first prong. See Harris v. Zoning Commission, supra, 259 Conn. 414.
In Harris v. Zoning Commission, supra, 259 Conn. 402, the zoning commission amended the town's zoning regulations to require larger lot sizes for all town parcels that contain wetlands, watercourses or steep slopes. The Supreme Court held that the owners of parcels containing wetlands, watercourses or steep slopes satisfied the first prong of classical aggrievement because the general amendment, which applied to the entire town, effectively only impacted a relatively small portion of the town's parcels. The court reasoned that "[i]n establishing such a specific personal and legal interest [to satisfy the first prong of the classical aggrievement test], we can discern no meaningful difference between a zoning amendment that expressly affects only a portion of a town's land and one that [affects a portion of a town's land] by its application." Harris v. Zoning Commission, supra, 259 Conn. 414. Therefore, the owners of the affected parcels in Harris had a special interest in the general amendment that was different from the other landowners in the town.
Similarly, in Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 284, the plaintiffs appealed from the decision of the defendant commission to amend the town subdivision regulations to require increased lot sizes where ponds, lakes or steep slopes were present. Id., 285-86. The Appellate Court stated: "The plaintiffs here have demonstrated a specific interest affected by the amendments . . . because those amendments apply only to tracts of land in the town capable of subdivision, which land covers only a small area of the town's total acreage." Id., 292. Since the amendment actually affected only a small percentage of the land in the town, the plaintiffs possessed an identifiable legal interest that the community as a whole did not share. Consequently, these landowners met the first prong of the classical aggrievement test.
The court found that "[a] generous estimate suggests that the amendments affect only 20 percent of the land in the town, leaving 80 percent of the town's acres unaffected." Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 289-90.
In the present case, the court agrees with the defendant that the plaintiff has failed to allege facts demonstrating a specific, personal and legal interest in the subject matter of the defendant's decision that is not shared by the community as a whole because the definition of "structure" in the amended regulations is of general applicability and, therefore, would apply to all properties in Woodbury. As such, the facts of this case are distinguishable from those of Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 284 and Harris, supra, 259 Conn. 402, in which the amendments in question applied only to portions of the towns' land. Consequently, the plaintiff has failed to allege sufficient facts to satisfy the first prong of the classical aggrievement test. Moreover, as the defendant argues, the plaintiff's allegations of harm, which are entirely based on speculation of what may occur in the future as the amended regulations might be applied to the association property, are insufficient to meet the second prong of the classical aggrievement test, which requires the plaintiff to "show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Emphasis added.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665; see Walls v. Commission, 176 Conn. 475, 478, 408 A.2d 252 (1979) ("[i]t is a well established principle that mere generalizations and fears . . . do not establish aggrievement"). "[T]he plaintiffs must allege a legally protected interest that is concrete and actual, not merely one that is hypothetical." Bentley v. Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 05 4003551 (June 8, 2006, Owens, J.TR.). The plaintiff, therefore, has failed to alleged facts demonstrating classical aggrievement.
B Statutory Aggrievement
"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.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
"A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). "[S]tatutory appeal provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 760, 900 A.2d 1 (2006).
General Statutes § 8-8 regulates appeals from a municipal zoning commission to the Superior Court. Section 8-8(b) in relevant part provides: "any person aggrieved by any decision of a board . . . may take appeal to the superior court for the judicial district in which the municipality located . . ." Section 8-8(a)(1) in relevant part provides: "[i]n the case of a decision by a zoning commission . . . `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."
The defendant argues that the plaintiff has failed to allege facts sufficient to demonstrate statutory aggrievement pursuant to § 8-8(a)(1). The defendant contends that although the plaintiff has alleged that she owns property that is within 100 feet of land affected by the defendant's decision, all of the land in the town would be similarly affected. It maintains that if the plaintiff is statutorily aggrieved, therefore, all property owners in the town would be as well, thereby unduly expanding the class of aggrieved persons beyond the scope of that intended by the legislature in enacting § 8-8. It further maintains that such a result would frustrate the purpose of statutory aggrievement and yield absurd results. Consequently, it argues, the plaintiff is not statutorily aggrieved.
The plaintiff counters that she has alleged sufficient facts to establish that she is statutorily aggrieved because she has alleged that the amendment was part of a plan or scheme to allow the association to continue its unlawful use of its land, which adjoins her property. She maintains that the express provisions of § 8-8 confers aggrievement upon any person who falls within its parameters. She argues that statutory aggrievement applies when general amendments to zoning regulations specifically affect the landowner's property and that her land has been specifically affected by the amended regulations in this case because she has alleged that it is part of a part of a plan or scheme to give the commission the unlawful power to define "structure" on a case-by-case basis, which may allow the association to use its property in an unlawful manner. She further argues that an owner of property within the zone affected by an amendment, or the entire town if the amendment involves a change to the comprehensive zoning plan, is aggrieved. Finally, she argues that with regard to statutory aggrievement, the plaintiff need not allege that she has been harmed by the commission's decision; mere ownership of land within the statutory distance of the land involved in the decision of the commission is sufficient.
As the defendant correctly notes, the alleged amendment would not confer any new power upon the commission to interpret its regulations because zoning commissions have the inherent power to interpret their regulations. See Farrior v. Zoning Board of Appeals, 70 Conn.App. 86, 91 n. 5, 796 A.2d 1262 (2002) ("it is the board's duty to interpret the regulations, giving consideration to all of the evidence and arguments and exercising its discretion independently"); see also Cunningham v. Planning Zoning Commission, 90 Conn.App. 273, 283, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005) ("[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it"). It further correctly notes that the cases cited by the plaintiff in support of her argument that she is statutorily aggrieved, Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 284; Cole v. Planning Zoning Commission, 30 Conn.App. 511, 620 A.2d 1324 (1993); and Summ v. Zoning Commission, 150 Conn. 79, 186 A.2d 160 (1962), are distinguishable because in each of those cases, the amendments at issue applied not to the entire town, but affected only limited areas within each town.
For example, in Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 293, the Appellate Court held that a landowner whose property is specifically affected by a general amendment to zoning regulations is statutorily aggrieved. As discussed above, in that case, the defendant commission amended two sections of the town subdivision regulations, which changed the method for calculating lot size for parcels containing ponds, lakes or steep slopes. Id., 285-86. The court stated that "[a] generous estimate suggests that the amendments affect only 20 percent of the land in the town, leaving 80 percent of the town's acres unaffected." Id., 289-90. Under the facts of that case, in which only a small portion of the town's parcels were impacted, the court found that the general amendment specifically affected the plaintiff landowners' properties.
With regard to the legislative intent and purpose of statutory aggrievement pursuant to § 8-8, the Supreme Court has "observed that changes to the statutory aggrievement provision in § 8-8(a)(1) reveal a significant liberalization of the law of aggrievement concerning those who can appeal to court from a decision of a zoning agency because such changes relieved a limited class of plaintiffs from meeting the stringent standard for classical aggrievement . . . [T]he legislature presumed as a matter of common knowledge that persons owning property within close proximity to a projected zoning action would be sufficiently affected by the decision of a zoning agency to be entitled to appeal that decision to court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land involved in the decision would not unduly enlarge the class of those entitled to appeal such a decision." (Citations omitted; emphasis in original; internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 159, 856 A.2d 400 (2004).
The Supreme Court's rationale that statutory aggrievement was intended for a limited class of landowners is directly applicable to the present case. In this matter, the plaintiff's allegations pertaining to statutory aggrievement are insufficient to establish statutory aggnevement. Although the plaintiff alleges that the amendment is part of a plan or scheme to allow the association to continue unlawful activity on its property, the amendment, on its face, would relate to all properties in town. Consequently, were the court to find that the plaintiff is aggrieved as an owner of property that abuts or is within 100 feet of land involved in the decision of the commission, all landowners in the town would be similarly aggrieved because the definition applies to the entire town and is not explicitly directed toward any particular parcel or even any limited category of parcels. Such a construction of the provisions of § 8-8 would go beyond the legislative intent of relieving a limited class of plaintiffs from the requirement of establishing classical aggrievement. "It is axiomatic that [the court] construe[s] a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . [The court] must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 616, 881 A.2d 978 (2005). Accordingly, the court finds the plaintiff has failed to sufficiently allege facts demonstrating statutory aggrievement pursuant to § 8-8(a)(1).
III CONCLUSION
The court finds the plaintiff has failed in her complaint to allege sufficient facts that demonstrate either classical or statutory aggrievement. Therefore, this court lacks subject matter jurisdiction over the appeal and the defendant's motion to dismiss is GRANTED.