Barry Montgomery v. Planning and Zoning Town of Greenwich et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 104

The plaintiff, Barry Montgomery, appeals from a decision of the defendant, the planning and zoning commission of the town of Greenwich, in which the defendant granted approval to the Greenwich department of public works for a final coastal site plan.   The plaintiff alleges that the defendant “acted illegally, arbitrarily, and in abuse of the discretion vested in it by law as an administrative agency” in granting the application, thereby violating the zoning regulations.   Specifically, the plaintiff alleges that the defendant failed to determine whether:  (1) there was any electromagnetic danger from two cell phone towers and from an electric power generating station on adjoining property;  (2) the lack of a passenger drop off area as part of the traffic and parking plan was a safety hazard;  (3) the eight-foot-wide concrete path on top of the stone reventment with an almost vertical seawall along the water side of the park imposes a significant and inherent safety risk of falling down the slope and into the water;  and (4) the site plan complies with the requirements and goals of the Coastal Management Act, General Statutes § 22a–90 et seq.

On November 23, 2011, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff has not pleaded aggrievement, thereby depriving the court of subject matter jurisdiction.   The defendant filed a memorandum of law in support of its motion.   On May 26, 2011, the plaintiff filed a memorandum of law in opposition to the motion, alleging that he “is aggrieved because zoning regulations are to protect the interest of the public at large.”   The issue before the court is whether the plaintiff has pleaded aggrievement.

“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 ․” (Internal quotation mark omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010).  “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 (2001).  “The proper procedural vehicle for disputing a party's standing is a motion to dismiss.”   (Internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 615 n.6 (2005).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).”  (Internal quotation marks omitted.)  Wilcox v. Webster, 294 Conn. 206, 213 (2009).  “[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 (2003).

The defendant makes the following arguments.   First, the plaintiff is not statutorily aggrieved within the meaning of General Statutes § 8–8(a)(1) in that the plaintiff does not own land that abuts or is within a 100–foot radius of any portion of the land involved in the defendant's decision.   The fact that the plaintiff participated in the hearing conducted by the commission does not make him statutorily aggrieved.   Moreover, the plaintiff is not classically aggrieved because he has not shown a specific, personal and legal interest in the case.   The plaintiff has shown only a general interest that pertains to the community as a whole.

In response, the plaintiff argues the following.   First, the zoning regulations are designed to protect the interest of the public at large.   Moreover, the plaintiff is classically aggrieved because the commission predetermined its decision on the application, it colluded with the applicant and the same attorney represented the town and the applicant.   Furthermore, the plaintiff is statutorily aggrieved because he has an undivided interest in the land at issue as a taxpayer of the town, he has an undivided interest in the seabed land adjacent to the land at issue as a state taxpayer and he has an undivided interest in the waters that lap the edge of the subject property as a federal taxpayer.   Finally, the plaintiff argues that General Statutes § 8–8(p) provides that the right of a person to appeal a decision of a board to the superior court and the procedure prescribed in that section shall be interpreted liberally.

General Statutes § 8–8(b) provides in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․” (Emphasis added.)  “[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399 (2007).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 555 (2011).  “The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8–8(a)(1) ․” Mather v. Deep River Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 09 4010638 (December 16, 2010, Wiese, J.).  Section 8–8(a)(1) defines an “aggrieved person” as “any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

In the present appeal, the plaintiff has not alleged statutory aggrievement by virtue of § 8–8(a)(1).   Specifically, the plaintiff does not allege that he owns land that abuts or is within a radius of one hundred feet of any portion of the land involved in the defendant's decision.   Moreover, the defendant has submitted an affidavit of Katie Blankley, the deputy town planner of Greenwich, who attests that the plaintiff's property is not within a radius of 100 feet of the land at issue and that the plaintiff's property does not abut that land.¹  The plaintiff simply argues that he has an undivided interest in the land as a taxpayer of the town, and that he has an undivided interest in the water adjacent to the land as a state and federal taxpayer.   Such purported interests do not satisfy the requirements of § 8–8(a)(1).   See Lewis v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 96 080274 (May 2, 1997, Arena, J.) (in concluding that the plaintiff was not aggrieved by the decision of a zoning board of appeals, holding that “the plaintiff's status as resident and taxpayer is insufficient to amount to aggrievement as required by General Statutes § 8–8 ․ [A]n individual whose interest is merely that of a resident and taxpayer of the town concerned with the strict enforcement of the zoning regulations for the general welfare of the community, is not entitled to maintain an appeal as an aggrieved person ․”).  Accordingly, the plaintiff has not pleaded statutory aggrievement.

A plaintiff may allege aggrievement not only by statutory aggrievement, but also by classical aggrievement.  “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.   Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 555.

Moreover, the law is clear that “[a]n individual's general interest as a resident and taxpayer in the enforcement of the town's zoning regulations is not sufficient to confer aggrievement.”   Julian v. Planning and Zoning, Superior Court, judicial district of Hartford, Docket No. CV 00 0803213 (July 31, 2001, Maloney, J.), citing Munhall v. Inland Wetlands Commission, 221 Conn. 46, 53 (1992).  “The plaintiff's status as a taxpayer does not automatically give [it] standing to challenge alleged improprieties in the conduct of the defendant town ․ The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d][it] to suffer some pecuniary or other great injury ․ It is not enough for the plaintiff to show that [its] tax dollars have contributed to the challenged project ․ The plaintiff must prove that the project has directly or indirectly increased [its] taxes ․ or, in some other fashion, caused [it] irreparable injury in [its] capacity as a taxpayer.”  (Internal quotation marks omitted.)  Andross v. West Hartford, 285 Conn. 309, 323 (2008).  “[W]hen injury is shared by the community, the proper party to vindicate public interests may be the attorney general, the state's attorney or the town itself ․ [A] town's administrative body is the proper party to ensure the protection of public interests falling within the scope of its authority.”   (Citations omitted.)  Id., 331.

In the present appeal, the plaintiff does not allege sufficient facts to satisfy the requirements of classical aggrievement.   The plaintiff argues that the zoning regulations are intended to protect the interest of the public at large.   Even accepting that argument as true, it is irrelevant to the question of whether the plaintiff has a specific, personal and legal interest in the defendant's decision.   Moreover, the plaintiff's allegations that the commission and the applicant colluded and that the commission predetermined its decision concern the interests of the community as a whole, not those of the plaintiff himself.   At the same time, such allegations are mere generalizations and, therefore, are insufficient to confer aggrievement on the plaintiff.   Furthermore, the plaintiff's alleged interest in the defendant's decision as a taxpayer does not confer standing on him absent a pecuniary or other greater injury, which the plaintiff also has not shown.   Thus, the plaintiff has not shown a specific, personal and legal interest in the defendant's decision and, accordingly, fails to satisfy the first prong of the test for classical aggrievement.

Similarly, the plaintiff does not allege sufficient facts to satisfy the second prong of the test for classical aggrievement.   As discussed above, the plaintiff's allegations concern only the community in general and the plaintiff's status as a taxpayer;  the plaintiff does not allege any injury specific to himself.   Accordingly, the plaintiff has not shown that the defendant's decision has specially and injuriously affected a specific personal or legal interest.   To the extent that the plaintiff's claims have merit, the attorney general, the state's attorney or the town's administrative body would be the proper party to bring this suit on behalf of the public interest, not the plaintiff himself.   Thus, the plaintiff also has not satisfied the second prong of the test for classical aggrievement.

As the plaintiff has failed to satisfy his burden of pleading aggrievement, the court grants the defendant's motion to dismiss the plaintiff's complaint.

BY THE COURT

MINTZ, J.

FOOTNOTES

FN1. The facts contained in the affidavit are undisputed.   Therefore, the court may consider such facts as evidence.   See Ferreira v. Pringle, supra, 255 Conn. 346–47..  FN1. The facts contained in the affidavit are undisputed.   Therefore, the court may consider such facts as evidence.   See Ferreira v. Pringle, supra, 255 Conn. 346–47.

Mintz, Douglas C., J.