Opinion
CV-03-0825381
November 17, 2003
MEMORANDUM OF DECISION
I
The present matter is a mini drama within our system of government. It concerns both the high expectations of citizens who believed they had worked through the local legislative process to strengthen their community and the conflict between our branches of government. Yet, facing this court, in its simplest form, it is an appeal of a zone change allowing for certain development. It is also a case of failed expectations.
As a result of a controversial supermarket proposal in 1996, the residents of the Elmwood section of West Hartford encouraged the Town to engage in a serious study of the area's future development. The town retained an architect and with the assistance of the town planner and the involvement of many residents, including the plaintiff herein, Patti Sanko-Lowry, the community worked to build a plan which was ultimately adopted by the West Hartford Town Council, acting in its zoning capacity pursuant to General Statutes § 8-1 et seq. The Council titled this plan, "An Ordinance Establishing a Traditional Neighborhood Design District for Elmwood Center" ("TND"), § 177-44.1 of the West Hartford Code.
The purpose of this plan is "to encourage the development of fully integrated, mixed uses, pedestrian-oriented neighborhoods. The intent is to minimize traffic congestion, suburban sprawl and environmental degradation. The Traditional Neighborhood Design District diversifies and integrates land uses within close proximity to each other and provides for the daily recreational and shopping needs of' the residents. The Traditional Neighborhood Design District is a sustainable, long-term development which enhances the quality of life to ensure the highest possible economic and social benefits for all residents."
On or about January 17, 2003, the intervening defendants, Ginsburg Development CT, LLC and WHP Realty, LLC (collectively, "GDC"), submitted an application to develop the 10.2-acre Talcott Junior High School property which had been previously designated a Special Development District (SDD) pursuant to § 177-44 of the West Hartford Code. The property is located within the center of Elmwood and is subject to the new TND. On April 24, 2003, the Town Council approved the application which would allow the construction of 148 homes. Shortly thereafter, on May 7, 2003, the named plaintiff appealed to this court alleging that the application did not conform with the TND for various reasons including that it was a single rather than mixed use, that it used the first floor for parking, and that it did not provide for entrances from the Street. The plaintiff also alleged that the Town Council wrongfully permitted the conveyance of a 1.5-acre parcel from the town as part of the application because it failed to properly comply with certain voting and notice requirements.
The defendant town of West Hartford filed a motion to dismiss this action on June 18, 2003, maintaining that the plaintiff lacked standing to appeal. On July 2, 2003, the plaintiff filed an amended complaint adding additional plaintiffs and alleging new causes of action seeking both equitable and declaratory relief. On August 1, 2003, GDC filed a motion to dismiss the amended complaint on grounds of lack of aggrievement. Thus prior to determining whether the Town Council followed the requirements of the TND, this court must examine the plaintiff's legal ability to bring this action.
The question of whether the court can consider the amended complaint which was filed after the town's motion to dismiss, see, Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), but see, California Microwave-Telecom Transmissions System Inc. v. State of Connecticut, 15 Conn. L. Rptr. 39, 1995 Conn.Super. Lexis 2565 (1995, Corradino, J.), need not be determined. Notwithstanding the addition of the equitable relief counts, this is an appeal of a zoning action of the town of West Hartford. The addition of other counts with other labels does not change the fundamental nature of this case and the requirement of the plaintiff to prove aggrievement.
This court notes that the additional plaintiffs are not properly added as they did not file the appeal within the fifteen-day requirement of General Statutes § 8-8(b). See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 487 A.2d 559 (1985). The proper method to add a plaintiff would presumably be pursuant to General Statutes § 52-101 et seq.; see generally, Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982). Unlike the correction of a pleading which did not require the action of the court in an amendment as of right as allowed in Sheehan v. Zoning Commission, 173 Conn. 408, 411-13, 378 A.2d 519 (1977), the motion to add plaintiffs or, more properly, intervene in this action, would require this court's action while the motion to dismiss was pending. Gurliacci v. Mayer, supra, 218 Conn. 545.
II A.
As stated by our Supreme Court in Alliance Energy Corp. v. Planning Zoning Board, 262 Conn. 393, 398, 815 A.2d 105 (2003), "[s]tanding is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . ." "The terms `aggrievement' and `standing' have been used interchangeably throughout most of Connecticut jurisprudence. [Our Supreme Court] previously ha[s] stated that [t]he question of aggrievement is essentially one of standing . . . Although these two legal concepts are similar, they are not, however, identical. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . Proof of aggrievement is, therefore, an essential prerequisite to the court's jurisdiction of the subject matter of the appeal." (Citation omitted; internal quotation marks omitted.) Trimar Equities, LLC v. Planning Zoning Board, 66 Conn. App. 631, 635-36, 785 A.2d 619 (2001).
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Citations omitted; internal quotation marks omitted.) Alliance Energy Corp. v. Planning Zoning Board, supra, 262 Conn. 398, citing Blumenthal v. Barnes, 261 Conn. 434, 441-42, 804 A.2d 152 (2002). This is the test for aggrievement that we utilize in Connecticut. Gladysz v. Planning Zoning Commission, 256 Conn. 249, 256, 773 A.2d 300 (2001). The plaintiff maintains that we should adopt a broader test; namely whether the plaintiff is within the "zone of interest." See, e.g., Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). This standard, however, is simply not the rule we follow here in appeals from administrative land use decisions.
General Statutes § 8-8(a)(1) provides statutory aggrievement to those persons who "own 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." Our Supreme Court has determined that "the land involved in the decision" means an applicant's whole parcel and not just the specific portion where the requested activity will occur. Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 668-70, 560 A.2d 975 (1989). In this case, we are concerned, in terms of statutory aggrievement, with either the abutting or being within a radius of one hundred feet of the GDC parcel and not the TND district as a whole. In her complaint, Ms. Sanko-Lowry sets forth her address and alleged that she is a long time resident of Elmwood. She testified only that she lives within the TND. When asked about the town engineer's statement that her property did not abut or was within a one-hundred-foot radius of the land subject to the application, she indicated that "she did not know." She thus failed to produce any evidence that she meets the standards for statutory aggrievement.
Ms. Sanko-Lowry also testified that she has lived in her home since 1985 and that she decided to remain in her home due to the passage of the TND. She noted that after the supermarket development was defeated, she and others spent 18 months preparing the plan to produce a safer Elmwood with less traffic. She stated that the GDC proposal would eliminate a tennis court used by her husband and children. She further stated that the proposed architectural design, in which the first floor would be used for parking, would discourage pedestrian use and that she would not walk on the premises. The plaintiff stated that this proposal would produce more traffic, noise and pollution, and had the Town followed the TND, these problems would be eliminated. As Ms. Sanko-Lowry had not lived in her home when the school had operated, she did not know what the traffic was like at that time.
Ms. Sanko-Lowry's burden is to show that she has a "specific personal and legal interest in the subject matter," one different from that of the public generally, and further that "the specific personal and legal interest has been specially and injuriously affected." Aside from expressing concern that family members might not be able to use a tennis court, the plaintiff has simply not met our standards of proving aggrievement. In Walls v. Planning Zoning Commission, 176 Conn. 475, 477, 408 A.2d 252 (1979), the court noted that the testimony of the plaintiffs therein "at the hearing as to their `aggrievement' related only to issues of traffic. They expressed `concern,' `fear' and `apprehension' that the subdivision approval might result in increased traffic; no specific evidence was offered, however, to support those fears." It found that "[i]t is a well established principle that mere generalizations and fears such as those about which the plaintiffs testified at the hearing do not establish aggrievement." Id., 478. See also, Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 668; Joyce v. Zoning Board of Appeals, 150 Conn. 696, 698, 187 A.2d 239 (1962). Ms. Sanko-Lowry's concerns are no different and certainly no different than the public at large. To the extent the plaintiff argues that she has standing as a taxpayer, that alone is insufficient to meet the aggrievement tests. In Munhall v. Inland Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566 (1992), the court concluded that dissenting members of an inland wetlands commission who claimed an interest in the strict enforcement of the regulations as the basis for their aggrievement do not have the personal interest required to be considered sufficiently aggrieved. In addition, citing Tyler v. Zoning Board of Appeals, 145 Conn. 655, 145 A.2d 832 (1958), that court rejected the argument that "their general interest as residents and taxpayers rises to the level of the personal interest required in order to fall within the meaning of a `person aggrieved.'" Munhall, supra, 221 Conn. 53.
The plaintiff's attempt to introduce an affidavit at the hearing from Professor Eppli, a specialist in "new urbanism," does not overcome this burden. Notwithstanding evidentiary problems of this affidavit, it is vague and thus unpersuasive.
As the plaintiff is unable to satisfy our requirements for proving aggrievement, the motions to dismiss are therefore granted.
BERGER JUDGE.