Opinion
No. LLI CV 05 4002280S
March 23, 2006
MEMORANDUM OF DECISION
This motion to dismiss (#101) tests whether this court has jurisdiction to hear an action brought by a local planning commission to enforce alleged violation of the subdivision regulations. This motion must be granted because the planning commission lacks standing to institute the present action on behalf of itself or on behalf of the town.
FACTS
This action arises out of alleged subdivisions of land by the defendant, Icehouse Associates, LLC, which were made without approval of the plaintiff, Bethlehem Planning Commission. Also named as a plaintiff is the Town of Bethlehem. The plaintiffs filed a one-count complaint on April 26, 2005, alleging, inter alia, the following facts: The defendant is the record owner of certain real property in Bethlehem (the property), which consisted of three parcels at the time that the planning commission first adopted subdivision regulations.
In 2003, subsequent to the planning commission's adoption of subdivision regulations, the defendant filed a plan in the town clerk's office depicting the property, with the first parcel divided into two parcels. On that plan, the second parcel has no frontage on a public road and the third parcel comprises less than one tenth of an acre. In 2004, the defendant filed a second plan in the town clerk's office showing the property divided into four parcels, each consisting of more than four acres and having frontage on a public road. In 2004 or 2005, the defendant filed a plan with the Torrington Area Health District, which serves as Bethlehem's health authority, showing the property divided into six parcels, each consisting of approximately one and one-half acres (third plan). The second and third plans would each constitute a subdivision of the property within the meaning of General Statutes § 8-18 and the Bethlehem Subdivision Regulations; the defendant neither sought nor received approval from the planning commission for the configurations of parcels shown on those plans.
General Statutes § 8-18 provides in relevant part: "As used in this chapter . . . `subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision; `resubdivision' means a change in a map of an approved or recorded subdivision or resubdivision . . ."
The plaintiffs further allege that the defendant has sought approval from the Torrington Area Health District for the construction of septic systems for residential homes to be constructed on three or more of the parcels shown on the third plan and has expressed its intention to sell or lease the parcels delineated on that plan for home construction. They allege that the sale or lease of homes on the parcels as identified on either the second or third plan would be in violation of Bethlehem's Subdivision Regulations because these plans depict subdivisions for which approval was neither sought nor obtained. In its demand for relief, the plaintiffs seek, inter alia, a temporary and permanent injunction prohibiting the defendant from selling, leasing or seeking permits for construction on any of the parcels depicted on the second or third plan.
On June 3, 2005, the defendant filed a motion to dismiss the complaint accompanied by a memorandum of law in support, an uncertified copy of the minutes of various Bethlehem town meetings, an uncertified copy of the minutes of various board of selectmen meetings and an affidavit of Robert Piazza. The defendant moves to dismiss on the ground that the court lacks subject matter jurisdiction because: (1) the planning commission does not have standing to either commence or maintain a lawsuit; (2) Bethlehem does not have standing to prosecute this action because the action has not been authorized; and (3) no justiciable controversy exists. The plaintiffs filed a memorandum of law in opposition to the motion to dismiss on July 13, 2005, accompanied by an uncertified copy of an excerpt from chapter 42 of the code of the Town of Bethlehem.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .'" St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (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.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).
"In ruling upon whether a complaint survives a motion to dismiss, 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.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 304-05 n. 3, 875 A.2d 498 (2005). "The motion to dismiss admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
A. Standing
In support of its motion to dismiss for lack of subject matter jurisdiction, the defendant first asserts that (1) the planning commission does not have the power to commence or maintain lawsuits such as the one presently before this court and (2) Bethlehem does not have standing to prosecute this action because this action has not been authorized. "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, supra, 264 Conn. 544. "[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, 674 A.2d 821 (1996). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820, 889 A.2d 759 (2006).
"It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . [W]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [that may be remedied]." (Citation omitted; internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
B. Standing of the Planning Commission
First, the court must address the defendant's argument that the planning commission lacks standing. The defendant argues that planning commissions do not have any powers other that those expressly granted to them in chapter 126 of the General Statutes. It maintains that because General Statutes § 8-25 does not provide planning commissions with the power to sue, the planning commission lacks standing to commence or maintain this action. In addition, the defendant contends that generally, when determining whether planning commissions are authorized to perform an action, the courts need to find statutory authorization for that action, rather than a statutory prohibition against the action. In so arguing, the defendant compares General Statutes § 8-12, which applies to zoning officials, to § 8-25, which pertains to municipal planning commissions. The defendant maintains that although § 8-12 permits zoning enforcement officers to commence an action to prevent the violation of the zoning regulations, § 8-25 does not provide a municipal planning commission with such power with regard to its subdivision regulations.
The plaintiffs counter that the planning commission has the power to enforce the subdivision regulations. They contend that since § 8-25 provides for the imposition of a $500 fine, that statute acknowledges that planning commissions necessarily have an enforcement role. They contend that the planning commission must have the power to enforce its regulations and that such power includes the power to institute legal actions. They further maintain that planning commissions have broad powers when they act within the confines of their statutory authority. Relying on CT Page 5692 Southington v. Commercial Union Ins. Co., 254 Conn. 348, 757 A.2d 549 (2000) (town has power to enforce subdivision bond even if no lots in subdivision have been sold prior to lapse of subdivision approval), King v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. CV 93 0130891 (March 14, 1994, Cocco, J.) ("General Statutes §§ 8-25 and 8-26 authorize municipalities to adopt and enforce subdivision regulations") and Smith v. Zoning Board of Appeals, 227 Conn. 71, 81-82, 629 A.2d 1089 (1993) (town of Greenwich exercises its zoning power by virtue of special act establishing its town charter, which is the source of authority for agents of town to enact and enforce subdivision regulations), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994), they maintain that several courts have at least implicitly acknowledged that planning commissions are authorized to enforce subdivision regulations.
The court notes that although the plaintiffs cite this case for the proposition that "a planning commission has the power to bring a suit to enforce a subdivision performance bond . . ."; (emphasis added) plaintiffs' memorandum in opposition, p. 11; the plaintiff in that case was the town of Southington, not a planning commission. Southington v. Commercial Union Ins. Co., supra, 254 Conn. 354. In that case, the court stated, in relevant part: "The sole issue in this certified appeal is whether a municipality that has accepted a subdivision performance bond may enforce the provisions of the bond . . ." (Emphasis added.) Id., 349-50.
To determine whether planning commissions have the power to sue to enforce their regulations, it is necessary to review the statutory scheme relating to planning commissions. In the context of challenges to enactments by planning and zoning commissions, it is well established that "the whole field of subdivision regulation is peculiarly a creature of legislation . . . [I]n order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, supra, 227 Conn. 81; DiPietro v. Zoning Board of Appeals, 93 Conn.App. 314, 319, 889 A.2d 269 (2006). The same rationale applies in the context of the defendant's challenge in the present case to the planning commission's power to commence and maintain this action. Accordingly, to determine whether the plaintiff planning commission has the power to commence and maintain the present lawsuit, the court must examine the relevant provisions in the General Statutes to determine whether the legislature granted such power to planning commissions, rather than a statutory prohibition against such action.
"While there are apparently no Appellate Court or Supreme Court cases on the subject of private or public injunction actions to prevent an illegal subdivision of land, it would seem that a municipality representing its residents would have standing to maintain an action, since it can obtain an injunction for zoning violations, providing the prerequisites for injunctive relief are present." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 41.8, p. 315. This is a common sense kind of argument, but it ignores the differences in language between the statutes governing zoning regulations and those governing subdivision regulations. I can find no support in the General Statutes for the proposition that planning commissions have the power to institute an action to enforce the subdivision regulations; the General Statutes clearly give zoning commissions the power to institute an action to enforce the zoning regulations.
Unlike § 8-12, which provides in relevant part that "any official having jurisdiction . . . may institute an action or proceeding to prevent . . . [violations of chapter 124 of the General Statutes, municipal zoning regulations, bylaws, ordinances or rules] or to restrain, correct or abate such violation," chapter 126 of the General Statutes, which pertains to planning commissions, does not provide planning commissions with such power. Why would the legislature give zoning commissions specific power to sue to enforce its zoning regulations but not give the same power to planning commissions to enforce its subdivision regulations? Perhaps it is because there are other enforcement tools which are unique to the enforcement of subdivision regulations. Section 8-25(a) provides in relevant part: "Any person, firm, or corporation making any subdivision of land without the approval of the commission shall be fined not more than five hundred dollars for each lot sold or offered for sale or so subdivided." (Emphasis added.) Another enforcement tool is provided further in the same section which states in part that "[n]o such plan shall be recorded or filed by the town clerk or district clerk or other officer authorized to record or file plans until its approval has been endorsed thereon by the chairman or secretary of the commission, and the filing or recording of a subdivision plan without such approval shall be void." This would seem to be the ultimate enforcement mechanism because it prevents the recording of a subdivision plan which has not been approved, or the voiding of any plan which gets recorded without approval. How can a developer obtain financing or title insurance for his plans which are unrecorded or declared void after they are recorded? Perhaps the legislature felt that the threat of fines and financial stalemate are sufficient to ensure enforcement of the subdivision regulations without giving the planning commission the power to bring an enforcement action. But, there is no need to speculate. The power to bring an enforcement action has not been given to planning commissions; it is not the province of the courts to re-write the statutes to try to correct perceived deficiencies. The plaintiff planning commission, therefore, lacks standing because the General Statutes have not granted planning commissions the power to institute actions to enforce subdivision regulations. Accordingly, the motion to dismiss must be granted as to the plaintiff planning commission.
Research reveals only one case in which a planning commission or planning and zoning commission instituted an action to obtain an injunction for violation of subdivision regulations. In Planning Zoning Commission v. Griffin, Superior Court, judicial district of New London, Docket No. 075337 (December 20, 1985, Berdon, J.) (12 Conn. L. Trib. No. 12, p. 28), the plaintiffs, the North Stonington Planning and Zoning Commission, the chairman of the planning and zoning commission and the zoning enforcement officer, brought an action against the defendant to enforce the subdivision regulations and "to fine the defendant for the conveyance of certain lots without appropriate subdivision authority." Id., 29. The court ordered a permanent injunction against the defendant, thereby enjoining her from subdividing her land until the planning and zoning commission approved a plan for each subdivision. While the court ordered an injunction in that case, the issue of whether the plaintiffs had standing to sue was not raised by the defendant or addressed by the court. Moreover, even if the issue of standing had been raised in that case, decisions of the trial court are not binding on any other court. See, e.g.; West Norwalk Assn. v. Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, docket No. CV98 0165846 (June 17, 1999, Tierney, J.)
C. Standing of the Town of Bethlehem
The next issue is the defendant's argument that the Town of Bethlehem lacks standing to prosecute this action because the action has not been authorized. The motion to dismiss the action by the Town of Bethlehem must be granted, but not for the reason advanced by the defendant. Because subject matter jurisdiction is implicated, and because of the court's decision to dismiss the action brought by the Planning Commission, the court finds that the Town of Bethlehem has no statutory authority to bring an independent action to enforce the subdivision regulations of the Town.
In their memorandum in opposition, the plaintiffs argue that the Town of Bethlehem is sufficiently authorized to bring this action in conjunction with the Planning Commission. They maintain that the planning commission is the proper entity to authorize such enforcement actions because the Town has delegated planning and subdivision authority to the commission. Noting that the Town, in establishing the Planning Commission, delegated to it all of the powers set forth in chapter 126 of the General Statutes; (see plaintiffs' memorandum in opposition, exhibit D); they contend that the Planning Commission is "the legal entity and agent of the town, authorized to exercise the [t]own's statutory powers under Chapter 126." (Plaintiffs' memorandum in opposition, p. 12.) Consequently, the plaintiffs argue that the Planning Commission acts as the Town's proxy in planning and subdivision matters and that the Commission is not required to obtain permission from the Board of Selectmen to enforce the subdivision regulations or to institute this action. They further maintain that neither General Statutes §§ 7-10 through 7-14, which pertain to selectmen, nor the Bethlehem code of ordinances impose any requirements regarding the institution of legal actions. Finally, they distinguish Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 651 A.2d 1246 (1995), a case cited by the defendant in its memorandum in which the authority of the plaintiff to sue on the tribe's behalf was called into question by members of the named plaintiff's tribal council, which intervened in the action. In the present case, they note that no challenge has been made to the plaintiff's authorization to bring this action by any person purporting to represent the interests of the Town.
"[T]he standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a proper party to request adjudication of the issues . . . Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party." (Citation omitted; internal quotation marks omitted.) Id., 571. "A complaining party ordinarily can show that it is a proper party' when it makes a colorable claim of [a] direct injury [it] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." Id., 572.
As a threshold matter, the court notes that the plaintiffs do not dispute that the Town would not have standing to institute an action on its own behalf. The issue to be decided is simply whether a planning commission may bring an enforcement action on behalf of the town. As discussed in section B, supra, planning commissions are creatures of statute that have only those powers granted to them by the legislature. As the legislature did not grant planning commissions the power to institute or maintain enforcement actions in any capacity, they lack the power to institute or maintain an action on behalf of another entity. Accordingly, the motion to dismiss must be granted as to the Town of Bethlehem because the Planning Commission lacks the authority to sue on the Town's behalf.