LLC v. Town of East Lyme Zoning Commission (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 103)

FACTS

The defendant, the East Lyme zoning and planning commission, adopted an incentive housing overlay district for the town of East Lyme. That overlay district required incentive housing developments to be mixed use and to rely on city water and sewer.   The plaintiff in this zoning appeal, New England National, LLC, alleges it has “financial and ownership interests in ․ Upper Pattagansett Road,” and that property is subject to development.   Previously, after encouragement from the first selectman of East Lyme, the plaintiff prepared a plan to develop incentive housing.   The plaintiff's plan was not mixed use and did not rely on city water and sewer.

On December 8, 2010, the plaintiff appealed from the defendant's decision.   The plaintiff's complaint alleges the above facts and seeks the invalidation of the incentive housing overlay district enacted by the defendant.   On January 28, 2011, the defendant moved to dismiss the plaintiff's case on the ground that the plaintiff was not aggrieved by a decision of the defendant.   The defendant filed a memorandum of law in support of its motion on the same day.   On March 1, 2011, the plaintiff filed an objection to the defendant's motion to dismiss and an accompanying memorandum of law.   On March 10, 2011, the court heard the matter at short calendar.

ANALYSIS

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).   In this case, neither party has supplemented their pleadings with evidence regarding the issue of aggrievement.  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, 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.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The only allegations of aggrievement in the plaintiff's complaint are the following:  Paragraph twelve alleges:  “Plaintiff is aggrieved to the extent that its conceptual project, which was designed in good faith to comply with the specifications discussed with the First Selectman, is not permitted under the regulations as adopted because it is not mixed use and is designed to depend on public water and sewer service.”   Paragraph fifteen alleges:  “The [plaintiff is] aggrieved by said decision in that it was arbitrary and capricious, in violation of state and federal constitutional due process rights, [and] has and will continue to cause the [plaintiff] financial harm.”

“[P]leading and proof of aggrievement are prerequisites to the 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 ․ Two broad yet distinct categories of aggrievement exist, classical and statutory ¹ ․ 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 ․” (Internal quotation marks omitted.)  JZ, Inc., Dunkin Donuts v. Planning & Zoning Commission, 119 Conn.App. 243, 246, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).  “[B]ecause aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict.”  (Internal quotation marks omitted.)  Id., 247.

The defendant argues that the plaintiff is not aggrieved, and that the court therefore lacks jurisdiction to hear this appeal.   The plaintiff's proposed plan to build low income housing is not related to the defendant's decision to create the districts.   While conceding that it does not meet the test for statutory aggrievement, the plaintiff argues, however, that it does meet the test for classical aggrievement.   The plaintiff claims that it relied on the representations of a first selectman of the town of East Lyme and prepared a proposal.   The incentive housing overlay zone does not apply to the proposal relating to the plaintiff's property.   The plaintiff nevertheless claims it is aggrieved by the defendant's enactment of the incentive housing overlay zone.

As to the first prong of the test of classical aggrievement, the plaintiff did not plead a specific, personal, and legal interest in the subject matter of the decision, as opposed to the general interest that all members of the community share.   Even taking the allegations of the complaint in their most favorable light and taking all reasonable inferences from the allegations of the complaint, the plaintiff's complaint does not allege that the incentive housing overlay zone applies to the plaintiff's property.   The plaintiff's complaint is therefore insufficient to establish that the plaintiff has a legal interest in the subject matter of the defendant's decision.   The only thing the plaintiff's complaint alleges is that the plaintiff's conceptual plan does not satisfy the requirements of the new incentive housing overlay zone.

Moreover, the plaintiff does not meet the second prong of the test for classical aggrievement.   To meet the second prong, the plaintiff must allege that the agency's decision has specially and injuriously affected the specific personal or legal interest.   Even assuming that the plaintiff's property is affected by the overlay zone, the plaintiff's complaint alleges that the defendant required incentive housing to be mixed use and depend on public water and sewer.   That decision does not affect the plaintiff's property any differently than any other property.   The plaintiff's position has not been affected by the defendant's decision.   Before the defendant created the incentive housing overlay district, the plaintiff could not have implemented its plan for incentive housing.   It still cannot.   The inability to develop property a certain way does not establish aggrievement.   See Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969) (“the mere denial of an application does not establish aggrievement”).

The plaintiff relies on Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 922 A.2d 1120 (2010), for the proposition that a developer in an adjacent town has standing to appeal a town's decision to close a road, even though the developer did not own property abutting the road, or even within the defendant town.   The plaintiff attempts to analogize the Supreme Court's holding in Wellswood to this case.   It argues that the creation of an incentive housing overlay zone, a zone the plaintiff is incapable of utilizing, causes it harm similar to the harm suffered by the plaintiff in Wellswood.   That case is distinguishable from the present case.   The Wellswood plaintiff alleged in its complaint that the road closure would have deprived them of all access to the subdivision site.  Id., 812–13.   Our Supreme Court therefore ruled that the plaintiff had pleaded a specific, personal interest in the litigation and that the plaintiff was specifically and injuriously harmed by the decision to close the road.  Id., 814.   The road closure there would have deprived the plaintiff of access to its property.  Id.

In this case, the plaintiff does not allege that the defendant's decision with respect to the incentive housing overlay district deprived it of all access to its property.   To the contrary, the plaintiff only alleges that the particular development plan it had already prepared does not comply with the incentive housing overlay district.   The complaint does not allege that the plaintiff is prevented from developing a new plan or is otherwise prevented from using the subject property.

The court grants the defendant's motion to dismiss because the plaintiff has not sufficiently pleaded aggrievement.   The court, therefore, lacks subject matter jurisdiction to hear the plaintiff's appeal.

Devine, J.

FOOTNOTES

FN1. The plaintiff has not alleged statutory aggrievement and, therefore, no analysis of statutory aggrievement shall be conducted.  (See Conn. Gen.Stat. § 8–8(a).).  FN1. The plaintiff has not alleged statutory aggrievement and, therefore, no analysis of statutory aggrievement shall be conducted.  (See Conn. Gen.Stat. § 8–8(a).)

Devine, James J., J.