Frances Klein v. East Hampton Board of Appeals et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

This is an administrative appeal pursuant to General Statutes § 8–8 filed by the plaintiff Frances Klein from the actions of the defendant East Hampton Zoning Board of Appeals (ZBA).   The ZBA denied the plaintiff's appeal from an email communication sent by the East Hampton Zoning Enforcement Officer (ZEO) to the East Hampton Town Manager wherein the ZEO opined that there was no zoning issue regarding entertainment at the site of Angelico's Lake House Restaurant and that no enforcement action was warranted with respect to the playing of outside music the restaurant.

The plaintiff filed this appeal on August 27, 2010.   The action was originally commenced against the ZBA only but the owners of Angelico's Lake House Restaurant were subsequently cited in as defendants.¹  On December 21, 2010, Angelico filed a motion to dismiss for lack of subject matter jurisdiction on the grounds that:  (1) the plaintiff lacks standing because she is not aggrieved by the ZBA's decision;  (2) the ZEO's email communication was not an appealable decision;  and (3) the plaintiff waived any claims she may have had to appeal the issues raised in her complaint.   Angelico's motion to dismiss was accompanied by a memorandum of law.   On February 9, 2011, the plaintiff filed an objection to Angelico's motion and a memorandum of law in support of her objection.   Neither party filed affidavits or presented testimony in support of its position.   The court heard argument on the motion to dismiss on February 28, 2011.

For the reasons stated herein, the court concludes that the plaintiff lacks standing.   As this issue is dispositive, it is unnecessary for the court to reach the other issues raised by Angelico in its motion to dismiss.

I. STANDARD OF REVIEW

Lack of standing is a jurisdictional defect properly raised by a motion to dismiss.  St. George v. Gordon, 264 Conn. 538, 544–45, 825 A.2d 90 (2003);  see also Practice Book § 10–31(a)(1).  “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law or 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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1991).

Factors that a trial court must consider in deciding a jurisdictional question raised in a pretrial motion to dismiss vary based upon the status of the record in the case.  Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).   “The court may decide the motion on the basis of the complaint alone, on the basis of the complaint supplemented by undisputed facts established by affidavits or other types of undisputed evidence filed in support of the motion, or, when the facts are disputed, on the basis of an evidentiary hearing to establish jurisdictional facts.”  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550–51 n.8 (2011);  see also Conboy, supra, 292 Conn. 650–51.  “Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.”  Conboy, supra, 292 Conn. 651.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).   See also Conn. Gen.Stat. § 8–8(j) (the appellant has the burden of proving standing in a zoning appeal).  “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).

II. DISCUSSION

Angelico argues that the plaintiff lacks standing because she is not statutorily aggrieved as defined by General Statutes § 8–8(a)(1) or classically aggrieved as defined by common law.   To be statutorily aggrieved, one must 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 zoning board.  Gen.Stat. § 8–8(a)(1).   Classical aggrievement requires a two-part showing.  “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 members of 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 decision.”  Walls v. Planning and Zoning Commission, 176 Conn. 475, 478, 408 A.2d 252 (1979) quoting Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974).

Angelico maintains that the plaintiff does not meet either definition of aggrievement because she does not own property that abuts or is within a radius of one hundred feet of any portion of the land involved in the ZBA's decision and she does not allege facts in her complaint which, if proven, would show that she has a specific, personal and legal interest in the subject matter of the ZBA's decision.   In response, the plaintiff asserts that she has successfully pled that she is classically aggrieved by the ZBA's decision because she alleges in her complaint that she “owns real estate in close proximity to Angelico's Restaurant and the fair market value of her property will be adversely impacted due to noise emanating from the restaurant.”   The plaintiff does not claim to be statutorily aggrieved.

In support of its motion to dismiss, Angelico attaches to its memorandum of law a copy of a recorded Quit–Claim Deed evidencing that on December 1, 1999, the plaintiff transferred title to the property at 12 Bellevue Street, East Hampton to Frances Klein, Trustee of The Frances Klein Revocable Trust Indenture Dated December 1, 1999.   The plaintiff does not dispute the facts evidenced by the deed.   Rather, the plaintiff posits that because her complaint is silent as to the capacity in which she brings this action, in her individual capacity or as a fiduciary, the court must find on the basis of the facts alleged in the complaint alone that the plaintiff has met her burden of alleging standing.   The court disagrees.   As noted by the Connecticut Supreme Court in Conboy, “if the complaint is supported by undisputed facts established by affidavits submitted in support of the motion to dismiss;  ․ other types of undisputed evidence;  ․ and/or public records of which judicial notice may be taken;  ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].”  (Emphasis in original.)  (Citations omitted;  internal quotation marks omitted.)  Conboy, supra, 292 Conn. 651–52.

It is the plaintiff's burden to clearly allege facts demonstrating standing.   The court finds that the plaintiff has failed to meet her burden in this case because she has not alleged facts in the complaint or otherwise produced any evidence to show that she can satisfy the first prong of the aggrievement test.

In her complaint, the plaintiff alleges that she owns the property from which her alleged claim of aggrievement arises.   However, the undisputed evidence before the court establishes that the property at 12 Bellevue Street is not owned by the plaintiff, but by a trust for which the plaintiff serves as trustee.   Since the trust owns the 12 Bellevue Street property, the proper party to maintain this action would be Frances Klein, Trustee of The Frances Klein Revocable Trust Indenture Dated December 1, 1999, and not the plaintiff in her individual capacity.   See Treat v. Stanton, 14 Conn. 445, 454 (1841) (“[t]he obligation and legal responsibility is exclusively to the trustee and must be enforced by him in a court of law ․”).  Accord I‘Anson v. Kirsten, Superior Court, judicial district of Ansonia–Milford, Docket No. CV094011742 (October 29, 2009, Tyma, J.) (finding that a plaintiff does not have standing to maintain an action where he is merely a beneficiary to a trust that holds title to the property on which he resides and that any action designed to enforce the rights of the trust must be brought by the trustee).

The plaintiff argues in her memorandum in opposition to the motion to dismiss that the noise emanating from Angelico's Restaurant has interrupted the quiet enjoyment of her home and that she is therefore aggrieved by the ZEO's decision permitting outdoor entertainment to continue at the restaurant.   This claim, however, is not properly before the court because the plaintiff does not assert these allegations in her complaint.   To the contrary, the only factual allegations made by the plaintiff in her complaint on the issue of aggrievement are those discussed above and found insufficient to demonstrate the plaintiff's standing.

“In the absence of standing the court lacks subject matter jurisdiction to determine the merits of the case.”  Sadloski v. Manchester, 228 Conn. 79, 83, 634 A.2d 888 (1993).   Here, the plaintiff lacks standing to maintain this action because she does not own the property from which her claim of aggrievement arises and she has failed clearly to allege in her complaint facts demonstrating that she has a specific, personal and legal interest in the subject matter of the ZBA's decision.   Consequently, the court lacks subject matter jurisdiction to determine the merits of this case.

Because the court has concluded that it is without subject matter jurisdiction based on the first ground asserted in Angelico's motion to dismiss, the court need not address the remaining grounds raised by Angelico.

III. CONCLUSION

For the foregoing reasons, the court hereby grants Angelico's motion to dismiss.

SO ORDERED.

LISA KELLY MORGAN, JUDGE

FOOTNOTES

FN1. The defendant owners of Angelico's Lake House Restaurant, PJA Associates, LLC and Angelico Family, LLC, are referred to herein collectively as “Angelico.”.  FN1. The defendant owners of Angelico's Lake House Restaurant, PJA Associates, LLC and Angelico Family, LLC, are referred to herein collectively as “Angelico.”

Morgan, Lisa K., J.