Norwalk Hospital Association v. Zoning Commission of the City of Norwalk et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (103.00)

I. Background

The defendant 166 Glover Avenue, LLC (166 Glover) has moved to dismiss the appeal taken by the plaintiff Norwalk Hospital Association (NHA) from a decision of the Norwalk Zoning Commission (Commission) approving an amended application made by 166 Glover to remove a new parking garage from a site plan for development of property located at 166 Glover Avenue, Norwalk previously approved by the Commission.   The gist of the motion is that NHA is not aggrieved by the Commission action, lacks standing to appeal the decision, and therefore this court does not have subject matter jurisdiction over the appeal.   NHA opposes the motion contending it is classically aggrieved.

II. Facts

The parties agree that in May 2007 166 Glover received Commission approval for a site plan of expansion and development of the 2.6-acre property at 166 Glover Avenue upon which was located a vacant three-story office building with approximately 58,000 square feet of space.   The site plan called for an approximately 21,000 square foot addition to that building and the building of a garage for parking.   It was represented by 166 Glover to the Commission that the proposed use of the expanded building was for medical offices.   The site plan was approved by the Commission without a public hearing, and no appeal was taken.   The property is located in what is known as an Executive Office Zone.

The parties also agree that in October 2007 166 Glover sought Commission approval to use at least a third of the building as a fitness facility to be known as Healthtrax rather than medical offices.   NHA opposed this application, and it was denied in February 2008.   During the Commission's review of the application the Commission's Plan Review Committee reported that “[w]hen viewed in its entirety the application is clearly a health facility.   It may even be a hospital,” Ex. E to opposition NHA Memorandum (Plan Review Committee Memorandum).   The appeal by 166 Glover of the “Healthtrax Application” is pending in this court as Docket No. CV 08 4013524.   NHA petitioned to intervene as a defendant in that appeal, and the petition was granted by the Superior Court (Karazin, J.).

There is evidence in the file that The Stamford Hospital (TSH) in 2007 wrote to the Connecticut Office of Health Care Access of its intention to establish an Ambulatory Care Center at 166 Glover Avenue in Norwalk.   The proposed project, according to the letter, would concentrate out patient health services such as diagnostic cardiology, infusion therapy and imaging services in the same building with physician offices to provide patients and referring physicians in the towns north and east of Stamford with convenient access to these diagnostic and therapeutic procedures.   The letter also states that NHA currently provides many of the services proposed to be provided at 166 Glover Avenue.   Ex. B to NHA Opposition Memorandum.   166 Glover represents that this letter of intent has been withdrawn.

There is also evidence in the record that the Commission, subsequent to the site plan approval, sought legal advice from the City of Norwalk Law Department concerning the Healthtrax Application.   The Law Department response was that the Application showed contemplated uses not permitted in the Executive Office Zone, and that the original site plan approval was invalid.   Ex. C to NHA Opposition Memorandum.

III. Discussion

“Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ in order to have standing to bring an administrative appeal, a person must be aggrieved.”  United Cable Television Services Corp. v. Department of Public Utility Control, 235 Conn. 334, 343 (1995).   Standing, however, is not a technical rule designed to keep parties out of court;  it is a practical concept to keep courts and parties free of lawsuits brought to adjudicate nonjusticable interests.  Id. In this case NHA does not allege aggrievement as defined in General Statutes § 8-8(a)(1).   Rather, NHA alleges classical aggrievement which has been defined by a two-part test:  first, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the challenged action, as distinguished from a general interest common to the community as a whole;  second, the party claiming aggrievement must successfully establish that this specific, personal and legal interest has been specially and injuriously affected by the challenged action.   Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected.   Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 214-15 (2009).¹

In this case, NHA's Complaint and Appeal allege the following:

(1) NHA is the only acute care, nonprofit hospital in Norwalk. (¶ 1.)

(2) In May 2007 the Commission approved 166 Glover's site plan for a 78,000 square foot facility and new parking garage without the applicant ever mentioning that the building would be used by TSH as a comprehensive health care facility, something not permitted in the Executive Office Zone where it is proposed to be located. (¶¶ 4, 8.)

(3) Commission approval of the Second Amending Application [seeking to eliminate the garage] will allow TSH to operate a health care facility adversely affecting the mission of NHA to provide for the health care needs of the community.  (¶ 19 A-C.)

(4) NHA will be adversely affected differently than the general populace because it is required to provide emergency and acute care services to the uninsured, poor, and underserved population while TSH siphons off more routine less intensive from NHA. (¶ 19 D.)

(5) Requests for NHA ambulances to service TSH patients at the new facility adversely impact NHA. (¶ 19 F.)

(6) Improperly allowing the proposed health care facility in a zone where it is not permitted provides an unfair advantage to TSH in that NHA cannot locate a similar facility there.  (¶ 19 H.)

166 Glover contends in its motion to dismiss that the challenged action at issue is the approval by the Commission of deleting the originally proposed parking garage and that no adverse effect to NHA has been pleaded or can be proven from the elimination of the garage.   Thus, 166 Glover states “Norwalk's Hospital's anti-competitive motivations are manifested in its stated grounds for aggrievement.   Those grounds relate exclusively to the competition Norwalk Hospital alleges it may face from a medical office use of the building-a use approved by the Commission years ago-rather than any harm to Norwalk Hospital from the elimination of the garage.”   There is logic to that argument.   However, NHA contends that the approval of the Second Amending Application should be viewed as part of a continuum which began with and includes the original site plan approval, the result, NHA contends, of lack of full disclosure by 166 Glover.   NHA argues and it is not rebutted by 166 Glover, that the plans for the property include an ambulatory care center, or “medical mall” (as described by TSH in its letter to the State Office of Health Care Access).   Therefore, NHA contends the Commission's approval of the Second Amending Application continues the progress of 166 Glover's expansion plans, in conjunction with TSH, which as alleged, injures the specific personal and legal interests of NHA. Given the history of this project, the allegations of non-disclosure in connection with the original site plan approval, and the expressed opinion of the Norwalk Corporation Counsel, the court concludes it is not appropriate to treat this proceeding as wholly distinct and separate from prior Commission proceedings regarding this property and the existence, or not, of aggrievement must be determined on the whole record.

166 Glover also argues that competitive disadvantage does not rise to the level of aggrievement, citing New England Rehabilitation Hospital of Hartford v. Commission on Hospitals and Health Care, 226 Conn. 105 (1993).   In that case the plaintiff contended that the approval of a consortium of health care providers' application to open a rehabilitation facility affected the plaintiff's economic value and caused it to lose the opportunity to gain revenues, and profits.   The Connecticut Supreme Court said that a speculative loss of revenue is insufficient to establish aggrievement.  Id., 127.   It was also found that plaintiff had no present business operations as a rehabilitation hospital.  Id., 126.   The court also noted that loss of future revenues was insufficient and held that it would not qualify to support aggrievement unless the competition is “unfair” or “illegal.”  Id., 137 [ (citing State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 302-03 (1987) ].

In Board of Examiners in Podiatry, supra, the Connecticut Supreme Court said that while allegations of competition “likely to result in lost revenues is ordinarily insufficient to confer standing, this court has frequently assumed jurisdiction as matter of course over claims of unfair or illegal competition.”  295 Conn. 302 (emphasis in original).   Indeed, although there was no express allegation of unfair or illegal competition, it could be implied from other allegations.  Id., 303.

The court determines that NHA is classically aggrieved based on the allegations of its complaint in this appeal.   The Norwalk Hospital is the only licensed acute-care, nonprofit hospital in the Norwalk area.   It has an interest in this matter which is specific and personal to it, as distinct from the interest of the general public, because the 166 Glover Application is alleged to provide services competitive with those provided by NHA (a fact conceded by TSH).  Further, that interest is alleged to be specifically and injuriously affected by the Commission's action.   The court rejects the argument that the removal of a proposed parking garage from the site plan cannot injure NHA. The proposed development of the site certainly appears to include facilities which the Commission itself has found to be a health care facility.   The fact that the proposal continues to exist, and would potentially attract persons in need of health care services away from Norwalk Hospital, thereby depleting the number of paying or insured persons available to NHA, meets the legal standards of possible aggrievement.   The court's determination that aggrievement has been adequately pleaded by NHA is buttressed by the allegations that the potential competition posed by TSH possibly may have been engendered by lack of full disclosure of the proposed project in the initial site plan application, and the Commission finding that the proposed project is not allowed in the Executive Office Zone. These allegations are sufficient to raise the issue of whether the proposed competition is fair or legal.

IV. Conclusion

The motion to dismiss is denied for the reasons stated above.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. NHA argues that it is premature to determine the issue of aggrievement and suggests that a hearing should be held or that the issue should be decided on the record developed during trial.This position does not comport with the requirement that challenges to a court's subject matter jurisdiction be decided promptly.   Additionally, the standard quoted above that “pleading and proof of aggrievement are prerequisites to jurisdiction” suggest that it is appropriate to contest jurisdiction solely on the pleadings.   In Henry v. Planning & Zoning Commission, Superior Court, CV 98 0064922 (March 3, 1999) [24 Conn. L. Rptr. 345], Judge Corradino analyzed numerous cases and similarly concluded that a motion to dismiss can be based on a claim that the complaint in the appeal lacks the factual prerequisites for aggrievement.   Therefore, this court determines it is appropriate to adjudicate this motion to dismiss on the pleadings and limited facts on hand..  FN1. NHA argues that it is premature to determine the issue of aggrievement and suggests that a hearing should be held or that the issue should be decided on the record developed during trial.This position does not comport with the requirement that challenges to a court's subject matter jurisdiction be decided promptly.   Additionally, the standard quoted above that “pleading and proof of aggrievement are prerequisites to jurisdiction” suggest that it is appropriate to contest jurisdiction solely on the pleadings.   In Henry v. Planning & Zoning Commission, Superior Court, CV 98 0064922 (March 3, 1999) [24 Conn. L. Rptr. 345], Judge Corradino analyzed numerous cases and similarly concluded that a motion to dismiss can be based on a claim that the complaint in the appeal lacks the factual prerequisites for aggrievement.   Therefore, this court determines it is appropriate to adjudicate this motion to dismiss on the pleadings and limited facts on hand.

Adams, Taggart D., J.