Lisa Barnes v. Southington Zoning Board of Appeals et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The plaintiff, Lisa Barnes, appeals from the granting of a certificate of zoning compliance issued to the intervenor, 228 Queen Street, LLC, by the Southington zoning board of appeals (ZBA).   The ZBA and the intervenor have moved to dismiss, claiming that the plaintiff lacks aggrievement.

The partial record as filed by the parties on the joint motion to dismiss shows as follows.   The intervenor applied to the zoning board of appeals (ZBA) on June 24, 2009 for a retail establishment zoning permit under ZBA Regulation § 4-03.11A. This permit was granted on August 6, 2009, and additional conditions, agreed to by the ZBA and the intervenor, were added thereto.   The primary condition at issue in this suit was that the intervenor's inventory not exceed 5% as related to adult material.   The ZBA, with this condition, did not classify the intervenor's permit under Regulation § 2-19 relating to adult businesses, triggered when the adult material inventory is above 10%.¹  The plaintiff did not appeal from the granting of this permit, with its specific finding that the intervenor's premises was not governed by § 2-19.

In January 2010, the intervenor requested of the ZBA that a certificate of zoning compliance issue to it under Regulation § 14-02.3. In keeping with its usual practice, the ZBA's zoning enforcement officer conducted an inspection of the intervenor's premises.   He concluded on January 28, 2010 that the certificate should issue, and that the 5% agreement had been met.   A hearing was held before the ZBA on the issuance of the certificate, and the ZBA upheld the zoning enforcement officer's determination that a certificate should issue.   The plaintiff has appealed from the issuance of the certificate of zoning compliance, contesting the determination by the ZBA to issue the permit, as well as challenging the computation of the zoning enforcement officer that the original permit condition of 5% adult material was met.

The ZBA and the intervenor have moved to dismiss on the ground that the plaintiff is not aggrieved.   The plaintiff admits that she does not live within 100 feet of the intervenor's premises.   Therefore she is not entitled to claim statutory aggrievement.   See § 8-8(a)(1);  Albuquerque v. State Retirement Commission, 124 Conn.App. 866, 874 (2010) (finding lack of statutory aggrievement).

Rather, the plaintiff claims that she is classically aggrieved.  “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 specifically and injuriously affected the specific personal or legal interest.”  (Citation omitted, internal quotation marks omitted.)  Albuquerque v. State Retirement Commission, supra, 124 Conn.App. 873;  JZ, Inc. Dunkin Donuts v. Planning & Zoning Commission, 119 Conn.App. 243, 246, 987 A.2d 1072 (2010).

The plaintiff claims to hold a “specific, personal and legal interest” in this dispute (over whether the certificate of zoning compliance was correctly issued) because the permit was in fact given in 2009 under Regulation § 2-19.   If the permit was under this regulation, then she is aggrieved under Regulation § 11-17 because city residents within 750 feet of an adult business have standing to raise challenges to § 2-19 businesses.   Alternatively, she sets forth violations of Regulation § 2-17 in the decisions made by the zoning enforcement officer in counting the “sexually oriented material.”   These arguments are also in the record as submitted.   See plaintiff's application for a hearing submitted to the ZBA on February 18, 2010.   There is no dispute that the plaintiff's residence is 300 feet from the intervenor's premises.²

The court, however, rejects this argument.   The plaintiff did not challenge the permit in 2009.   She had an opportunity to do so, and also knew at the time the nature of the business proposed to be conducted.³  If she had wanted to make an argument that the ZBA and/or the intervenor were entering into a subterfuge to defeat Regulation § 2-19, had failed to set a proper standard for the 5% determination, or had violated any other regulation of the ZBA in granting the permit, the course of appeal was open to her in 2009.

As our Supreme Court stated in Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992):  “We have ․ consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test ․ Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court ․ All of these rules rest in large part, at least in the zoning context, on the need for justified reliance by all interested parties-the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities.”   (Citations omitted;  internal quotation marks omitted.)   See also Lallier v. Zoning Board of Appeals, 119 Conn.App. 71, 78, 986 A.2d 343 (2010).

Now that the retail business permit has issued, and no appeal was taken, the plaintiff cannot claim aggrievement based on Regulation § 2-19.   Since that regulation is inapplicable here, she has not proved any aggrievement other than that held by all others in the community.

Since the plaintiff has not demonstrated aggrievement, this appeal is dismissed for lack of subject matter jurisdiction.   See Nizzardo v. State Traffic Commission, 55 Conn.App. 679, 687, 739 A.2d 744 (1999), aff'd, 259 Conn. 131, 788 A.2d 1158 (2002).

Henry S. Cohn, Judge

FOOTNOTES

FN1. A “sexually oriented business” under § 2-19 is one which sells material in which more than 10% of the material emphasizes sexual activities or specified anatomical parts..  FN1. A “sexually oriented business” under § 2-19 is one which sells material in which more than 10% of the material emphasizes sexual activities or specified anatomical parts.

FN2. The plaintiff may be arguing that she is merely contesting the zoning enforcement officer's issuing of the certificate of compliance, as the amount of adult material exceeds 5% and that the officer has made a calculation error.   But this challenge (without relying on her standing of 300 feet from a sexually oriented business) is no different from a general interest that all the community would share..  FN2. The plaintiff may be arguing that she is merely contesting the zoning enforcement officer's issuing of the certificate of compliance, as the amount of adult material exceeds 5% and that the officer has made a calculation error.   But this challenge (without relying on her standing of 300 feet from a sexually oriented business) is no different from a general interest that all the community would share.

FN3. In the plaintiff's brief in opposition to the motion to dismiss at page 11, she sets forth a description of other similar businesses of the intervenor in litigation in 2009.   In addition, attached to the June 24, 2009 permit application was a table prepared by the intervenor disclosing its proposed inventory.   At oral argument on November 23, 2010, the parties agreed that the plaintiff was permitted to request a hearing before the ZBA on whether the permit should have been granted.   She has no explanation for a failure to raise on appeal the ZBA's granting of the permit in August 2009..  FN3. In the plaintiff's brief in opposition to the motion to dismiss at page 11, she sets forth a description of other similar businesses of the intervenor in litigation in 2009.   In addition, attached to the June 24, 2009 permit application was a table prepared by the intervenor disclosing its proposed inventory.   At oral argument on November 23, 2010, the parties agreed that the plaintiff was permitted to request a hearing before the ZBA on whether the permit should have been granted.   She has no explanation for a failure to raise on appeal the ZBA's granting of the permit in August 2009.

Cohn, Henry S., J.