Lillian Iodice v. Zoning Board of Appeals of the City of Bridgeport et al. (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Lillian Iodice, brings this appeal in two counts against the Zoning Board of Appeals of the City of Bridgeport, and against Carm–Lor Entertainment, Inc. and Sammy Alanz.

According to the Plaintiff's complaint, Carm–Lor Entertainment, Inc. (Carm–Lor) is the owner of property located at 2450–2458 and 2460 Main Street, Bridgeport.   The Plaintiff alleges, in paragraph 3 of her complaint, the Carm–Lor “operates an adult entertainment establishment, or strip club, at the Premises under the name of Mystique Gentleman's Club ․”

The Defendant, Sammy Alanz, is the president of Cam–Lor, and is the permittee under a café liquor permit covering the premises.

According to the complaint, on September 13, 2012, Attorney Jonathan Klein wrote a letter to Bridgeport Zoning Enforcement Officer Neil Bonney.   The letter claimed that Mystique Gentlemen's Club, operating at 2450–2458 and 2460 Main Street, Bridgeport, was operating without the necessary certificate of zoning compliance, and that any preexisting nonconforming use of the property as a venue for “exotic dangers” had been abandoned.   The letter (ROR 10), requested Bonney to issue an order to discontinue the use of the premises as an adult entertainment venue, and to demonstrate that the property was subject to an existing nonconforming use.

The Plaintiff claims that Bonney did not respond to the September 13 letter (ROR 10), and that a follow-up letter was sent to Bridgeport Zoning Official Dennis Buckley on November 12, 2012.   This communication claimed that 2450–2458 and 2460 Main Street was not in compliance with applicable zoning regulations respecting adult entertainment.   The Zoning Administrator was asked to take action, consistent with the earlier letter on September 13.

On November 19, 2012 (ROR 5), Zoning Administrator Buckley responded to the letters of September 13 and November 12.   He maintained that the adult entertainment use, which he said was “established over 20 years ago” was lawfully operating, with a valid liquor license (ROR 5).

The Plaintiff, on December 19, 2012 filed a petition with the Defendant Zoning Board of Appeals (ROR 3), along with a statement of grounds for appeal (ROR 4).   The statement of grounds for appeal cited several alleged violations of the Bridgeport Zoning Regulations (ROR 4, p. 3), and cited the Zoning Administrator's decision to take no action.   It was submitted to the Zoning Board of Appeals, pursuant to § 8–7 of the General Statutes.   The statute reads, in relevant part:

An appeal may be taken to the zoning board of appeals by any person aggrieved ․ and shall be taken within such time as is prescribed by a rule adopted by such board, or, if no such rule is adopted by the board, within thirty days ․ The board shall hold a public hearing on such appeal in accordance with the provisions of section 8–7d.   Such board may reverse or affirm wholly or partly, or may modify any order, requirement of decision appealed from ․

Following receipt of the petition and grounds for appeal, Dennis Buckley, acting in his capacity as Clerk of the Bridgeport Zoning Board of Appeals, wrote to Attorney Klein (ROR 1).   In the letter, he stated “the Zoning Board of Appeals review committee, found no grounds to hear your petition ․” He also returned the application fee.

The Bridgeport Zoning Board of Appeals took no action on the Plaintiff's petition, and no public hearing was held.

In this appeal, the Plaintiff, Lillian Iodice, claims that her petition was denied by the Zoning Board of Appeals (Par. 14), and asks that the board be ordered to hold a public hearing on her petition.

In Count One, of her complaint, the Plaintiff alleges that the Zoning Board of Appeals acted arbitrarily, when it failed to afford her a hearing, following the submission of her petition.   She maintains that the failure to afford her a public hearing, represents a “putative denial” of her petition by the Zoning Board of Appeals.

Count Two requests relief in the nature of mandamus.   It asks that the Bridgeport Zoning Board of Appeals be ordered to hold a public hearing on the Petition, pursuant to §§ 8–7 and 8–7d(a) of the General Statutes, and § 14–10–1 of the Zoning Regulations of the City of Bridgeport.

The Defendants, Cam–Lor and Sammy Alanz, have moved to dismiss this action.   They claim that the Plaintiff is not aggrieved by the refusal of the Zoning Board of Appeals to conduct a public hearing, concerning the petition, and that the Plaintiff has no standing to appeal.

They further claim that a writ of mandamus cannot be joined with a zoning appeal, and that the action is not timely.

MOTION TO DISMISS—STANDARD OF REVIEW

A motion to dismiss properly attacks the jurisdiction of the court by asserting that the plaintiff is unable, as a matter of law, and fact, to state a cause of action that can be heard in the particular forum.  Baskin's Appeal from Probate, 194 Conn. 635, 640 (1984);  Gurliacci v. Ma yer, 218 Conn. 531, 544 (1991).   The purpose of the motion is to test whether, on the face of the record, the court lacks either personal jurisdiction over the party, or subject matter jurisdiction.  Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, (1954).

Standing is the legal right to set the judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court, unless he has some interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.  Elder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369 (2005).

Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceeding in question belongs.   Konover v. West Hartford, 242 Conn. 727, 740 (1997).   In determining whether a court has jurisdiction to adjudicate a legal controversy, every presumption in favor of jurisdiction must be indulged.  Fairfield Lumber and Supply Co. v. Herman, 139 Conn. 141, 143 (1952).

Pleading and proof of aggrievement are jurisdictional, and a prerequisite for maintaining an appeal.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991).   The question of aggrievement is one of fact, to be determined by the trial court.  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989).

THE BRIDGEPORT ZONING BOARD OF APPEALS MADE NO DECISION CONCERNING PLAINTIFF'S PETITION

Section 8–7 is the provision of the General Statutes which governs appeals from a “decision” of the official charged with the enforcement of the zoning regulations.   The statute provides that an appeal may be taken by one who is “aggrieved.”

The Defendants insist that the Plaintiff, Lillian Iodice, was not aggrieved by the determination of Dennis Buckley, when the Zoning Administrator declined to issue the cease and desist order requested by Attorney Klein.   They also claim that the Plaintiff is unable to prove statutory aggrievement pursuant to § 8–8(1) of the General Statutes, or classical aggrievement, a prerequisite for maintaining this appeal.

The Plaintiff does not claim that she meets the test for either statutory or classical aggrievement.   Instead, she claims that as a taxpayer in the City of Bridgeport (Ex. 1, 2 & 3), she has standing to appeal, because the sale of liquor, and a liquor permit concerning 2450–2458 and 2460 Main Street are impacted by the refusal of the Zoning Administrator to pursue the requested cease and desist order.   She argues that she may avail herself of the “automatic standing” rule applicable in cases involving the sale of liquor, and that she is therefore a priori aggrieved.  Alliance Energy Corp. v. Planning & Zoning Board, 262 Conn. 393, 403 (2003);  Jolly, Inc v. Zoning Board of Appeals, 237 Conn. 184, 186–87 (1996).

At the hearing conducted on the motion to dismiss, counsel for the City of Bridgeport acknowledged that the “Zoning Board of Appeals Review Committee” cited in the letter to Attorney Klein over the signature of Dennis Buckley, is a fiction.   Buckley signed the letter in his capacity as Clerk of the Zoning Board of Appeals.  (ROR 1.) Counsel acknowledged that no such board was ever created by vote or resolution of the Zoning Board of Appeals.

Furthermore, the court has discovered no authority, and none was cited by the Bridgeport City Attorney, which permits a Zoning Board of Appeals to delegate to a subcommittee the authority to render a final decision on behalf of the board, concerning the holding of a public hearing.

It was represented, during the hearing on the motion to dismiss, that the decision not to hold a public hearing was made by Dennis Buckley, in conjunction with the chair of the Zoning Board of Appeals.

The return of record in this case does not contain the minutes of any meeting of the Zoning Board of Appeals, where the board voted to deny Plaintiff a public hearing.   Nor is there any evidence that the board as a whole determined that Lillian Iodice was not “aggrieved” by the decision of the Zoning Administrator/Clerk of the Zoning Board of Appeals.

Nothing in the return of record indicates that a public hearing was ever noticed by publication is a newspaper, or that notice of any “punitive denial” of the plaintiff's petition was published “in a newspaper having a substantial circulation in the municipality” as required by § 8–7 of the General Statutes.

The Return of Record contains no transcript of the Zoning Board of Appeals meeting.   No collective reasons for any decision are available, and there is no indication that the full board considered either the petition, or the issue of aggrievement.

The Plaintiff cannot claim to be “aggrieved” by any action of the Bridgeport Zoning Board of Appeals, in that the ZBA never made a decision from which an appeal would lie.   The determination which was evidently made by Dennis Buckley, in consultation with the board chair, is not a decision of the board, and will not be so construed.

The Return of Record unambiguously demonstrates that the Defendant, Bridgeport Zoning Board of Appeals, did not vote to deny the Plaintiff a hearing on her petition.

Therefore, as to the defendants Carm–Lor Entertainment, Inc. and Sammy Alanz, the court is compelled to grant their motion to dismiss, as to Count One.

Although the Bridgeport Zoning Board of Appeals is not a party to the motion to dismiss filed by the co-defendants, the court finds that it lacks jurisdiction concerning the appeal, in the absence of any decision by the Zoning Board of Appeals.   Therefore, the court on its own motion, pursuant to Practice Book § 10–33 ¹ dismisses Count One as the Bridgeport Zoning Board of Appeals.

COUNT TWO MUST BE DISMISSED AS TO CARM–LOR ENTERTAINMENT, INC. AND SAMMY ALANZ

The Defendants, Carm–Lor Entertainment, Inc. and Sammy Alanz, have also moved to dismiss Count Two of the Plaintiff's complaint.   In that count, the Plaintiff asks for an order in the nature of mandamus, requiring the Bridgeport Zoning Board of Appeals to consider her petition.

A writ of mandamus is an extraordinary remedy available in limited circumstances, and for limited purposes.   A writ will issue only where 1) the law imposes upon the party against whom the writ would run, a duty of performance which is mandatory and not discretionary, 2) the party applying for the writ has a clear legal right to have the duty performed, and 3) there is no other specific remedy.  Jalowiec Realty Associates, LP v. Planning & Zoning Commission, 278 Conn. 408, 412 (2006);  Garcia v. City of Hartford, 135 Conn.App. 248, 255 (2012).   Mandamus is an appropriate remedy, for example, where a zoning authority was failed to comply with statutory time limits.   Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680–81 (1985).

The Plaintiff must prove that she has a clear legal right to the performance of a duty.  Simons v. Canty, 195 Conn. 524, 533 (1985).   Since the purpose of a writ of mandamus is not to give or define rights, it cannot issue in a situation where the right is doubtful, or contested.  Gerrity v. Bisciglia, 178 Conn. 235, 238–39 (1979).

No writ of mandamus may issue as to the Defendants Carm–Lor or Sammy Alanz.   The Plaintiff makes no such demand in her prayer for relief, and no basis for any such claim can be gleaned from the record.   The Plaintiff's only claim for relief in the nature of mandamus, is directed to the Bridgeport Zoning Board of Appeals.

Therefore, as to Count Two, the request for mandamus must be dismissed, as to Carm–Lor and Sammy Alanz.

Concerning the Bridgeport Zoning Board of Appeals, the Plaintiff has asked the court to consider relief by way of mandamus, only if a finding is made that no appealable decision was made by the Zoning Board of Appeals.

In light of the granting of the motion to dismiss as to all parties regarding Count One, the court will consider the claim for relief in the nature of mandamus against the Zoning Board of Appeals.

In her prayer for relief, the Plaintiff asks that an order issue, directing the Bridgeport Zoning Board of Appeals “to hold a hearing on the petition.”

The prayer for relief seems to assume, that the Bridgeport Zoning Board of Appeals has made an implicit finding that Lillian Iodice is “aggrieved” within the context of § 8–7, and is therefore entitled to a hearing on the merits of her claim, regarding the decision of Zoning Official Dennis Buckley.

This assumption is not warranted, based upon the procedural posture of this case.

Section 8–7 provides for an appeal of the decision of a zoning official, by one who is “aggrieved.”   Therefore, it is entirely appropriate for a zoning board of appeals to decline to reach the merits of an appeal, in the absence of a finding that the petitioner is “aggrieved” by the decision from which the appeal is prosecuted.

Any decision, reached after a vote of a zoning board of appeals at an open meeting, determining that aggrievement has not been shown, would be appealable, pursuant to § 8–8(2)(b) 2 of the General Statutes.

After hearing, a reviewing court would be in a position to either dismiss or sustain such an appeal.   In the event that an appeal is sustained, a court is permitted to order a land use body to hold a hearing.³

In this case, relief by way of mandamus might be appropriate, if the Plaintiff requested the Bridgeport Zoning Board of Appeals to determine whether she is aggrieved by the decision of the Zoning Administrator, which she attempted to appeal.

Any decision concerning whether the Plaintiff is “aggrieved,” must be made by a vote of the members of the Zoning Board of Appeals, and must be recorded in the minutes of the meeting.   The decision concerning the Plaintiff's “aggrieved” status, cannot be rendered by an Ad Hoc “review committee” consisting of the Zoning Administrator/Clerk of the Zoning Board of Appeals, and the board chair.

Therefore, as to the Defendant, Bridgeport Zoning Board of Appeals, the motion to dismiss Count Two must be denied, and a hearing must be conducted concerning the Plaintiff's claim for relief in the nature of mandamus.

CONCLUSION

The motion to dismiss Counts One and Two, as to the Defendants Carm–Lor Entertainment, Inc. and Sammy Alanz, is GRANTED.

Count One is DISMISSED, as to the Bridgeport Zoning Board of Appeals.

As to Count Two, any motion to dismiss that count, as to the Defendant, Bridgeport Zoning Board of Appeals, is DENIED.

RADCLIFFE, J.

FOOTNOTES

FN1. Practice Book § 10–33—”Any claim of lack of jurisdiction over the subject matter cannot be waived, and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”.  FN1. Practice Book § 10–33—”Any claim of lack of jurisdiction over the subject matter cannot be waived, and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”

FN2. Section 8–8(2)(b), C.G.S.—” ․ any 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 ․”.  FN2. Section 8–8(2)(b), C.G.S.—” ․ any 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 ․”

FN3. Section 8–8(1)—”The court, after a hearing thereon, may modify or revise the decision appealed from.   If a particular decision is required by law, the court, on sustaining an appeal, may render a judgment that ․ orders the particular board action ․”.  FN3. Section 8–8(1)—”The court, after a hearing thereon, may modify or revise the decision appealed from.   If a particular decision is required by law, the court, on sustaining an appeal, may render a judgment that ․ orders the particular board action ․”

Radcliffe, Dale W., J.