Modern Tire Recapping Company, Inc. v. Newington Town Plan and Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

The defendants Wex–Tuck Realty, LLC (“Wex–Tuck”) and Bismark Real Estate (“Bismark”) move to dismiss this zoning appeal for lack of subject matter jurisdiction.   In October 2012 Wex–Tuck as owner and Bismark as applicant applied to the Newington Planning and Zoning Commission (“the commission”) for a special exception, site plan approval and location approval to construct a “motor vehicle services” use in the Planned Development zone (PD).  After public hearings the commission granted the application with conditions.   After legal publication this appeal was timely filed.

This motion was filed pursuant to G.S. § 8–8(j) and P.B. § 10–30.   The motion asserts that the complaint fails to allege any facts which form the basis for a finding of either classical or statutory aggrievement.   Plaintiffs respond that while they may not be statutorily aggrieved because they do not own property within 100 feet of the property to which the permits are attached, they are nevertheless classically aggrieved.   Specially, the plaintiffs argue that their classic aggrievement derives from the fact that they have challenged the validity of certain amendments to the Newington zoning regulations pursuant to which Bismark's applications were granted.   That challenge was formalized in Modern Tire Recapping Co., Inc. v. Newington Town Planning and Zoning Commission, No. FST HD LND CV–126035007, judicial district of Hartford at Hartford (“Modern Tire I”) in which these plaintiffs appealed from the enactment of certain zoning amendments, alleging in their complaint that the amendments were “ultra vires and illegal on various grounds.”   On July 30, 2013 this court dismissed that appeal.   However, on October 17, 2013 this court vacated its order of October 2, 2113 which denied the plaintiffs' motion to reargue, granted the motion to reargue and ordered the filing of memoranda of law in the light of the Appellate Court's decision in MacKenzie v. Planning and Zoning Commission, 146 Conn.App. 409 (October 15, 2013).   Since the Modern Tire I case is sub judice the court will assume that the particular amendments involved in that case are invalid for the purpose of this case.

“A motion to dismiss [for lack of standing] ․ 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss [is] de novo.”  (Internal quotation marks omitted.)  West Hartford v. Murtha Cullina, LLP, 85 Conn.App. 15, 20–21 cert. denied, 272 Conn. 907 (2004).

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim ․ Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.”  (Internal quotation marks omitted.)  R.F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 731 (2010).

“Standing is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ․ These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.   Such a personal stake in the outcome of the controversy ․ provides the requisite assurance of concrete adverseness and diligent advocacy.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486 (2003).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.”  (Internal quotation marks omitted.)  Andross v. West Hartford, 285 Conn. 309, 322 (2008).   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.)  Id. The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.  Fink v. Golenbock, 238 Conn. 183, 199 n.13 (1996) ․ To establish aggrievement, first the plaintiff [must allege] facts which, if proven, would constitute aggrievement as a matter of law, and, second ․ [prove] the truth of those factual allegations.”  (Internal quotation marks omitted.)  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 193 n.13 (1996).  (Alternate citations omitted.)  Emerick v. Glastonbury, 145 Conn.App. 122, 127–29 (2013).

“Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.”  Lewis v. Planning and Zoning Commission, 62 Conn.App. 284, 288 (2001).   At least in the context of our environmental protection law our Supreme Court has recognized “that the test for determining aggrievement is broader than injury to real property and that the ‘interest’ which may be the subject of aggrievement need not be confined to an interest in real property.”  Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 493 (1978).   The “interest” in quotes referred to above is that interest which “is arguably within the zone of interests to be protected or regulated” by the legislation in question.  Id. at 492.

In evaluating a party's status as an aggrieved person the necessary starting point is the complaint which must allege facts which indicate the particular nature of the aggrievement.  Wucik v. Planning and Zoning Commission, 113 Conn.App. 502, 507 (2009).

The allegations of aggrievement in this case are found in paragraph 31 of the complaint.¹

“One line of cases, applicable to cases in which the parties present a motion to dismiss solely on the basis of the allegations of the complaint, holds that “we examine the pleadings to decide if the plaintiff has alleged sufficient facts:  ․ In doing so, moreover, we construe the pleadings broadly in favor of the plaintiff.  Shay v. Rossi, 253 Conn, 134, 140 (2000).

The first characteristic observed from the allegations is that they are all predicated on the status of each plaintiff as an “automotive business” rather than as an owner or possessor of an interest in real property.   The only place where any interest in real property is mentioned is in paragraph 4 and 8 where two of the plaintiffs are described as owners of real property.   Nevertheless, the allegations of ownership are made without reference to any facts which are claimed to form a basis for a finding of aggrievement.

Paragraph 31 alleges that the first prong of the aggrievement test is satisfied by the plaintiffs having a “specific, special, legally protected and particular interest” in the outcome of Modern Tire I which claims that the regulations pursuant to which the commission granted the permits at issue are invalid.   Paragraph 31b alleges nothing more than that these regulations “alter the procedural process and substantive use, dimension and performance standards applicable to the plaintiff's existing business.”  (Emphasis added.)   Finally, paragraph 31c alleges a violation of the uniformity rule contained in G.S. § 8–2(a).   It is noted that absent from the complaint is any allegation that the commission acted illegally or arbitrarily in granting the permits except that it acted pursuant to invalid regulations.   Thus, this is a case where business operators as opposed to owners of interests in real property are claiming to be aggrieved.

Because the essence of the plaintiffs' aggrieved status is that of business operators, a broader scope of analysis must be conducted.   In other words, the court must determine whether these businesses are “within the zone of interests that the regulations in question are designed to protect.”  Abel v. Planning and Zoning Commission, 297 Conn. 414, 435 (2010).   An examination of the regulations which are involved in Modern Tire I manifests no discernable legislative concern for the interests of individual businesses within the affected zones.   From the allegations of the complaint, especially paragraphs 14 through 17 it is apparent that in enacting these amendments in 2012 the commission's concern was that the restrictions which it placed on these uses in 2007 were unduly restrictive and should be relaxed in certain respects.   There is nothing in the complaint which claims that the purpose of the legislation was to regulate the specific businesses operated by the plaintiffs as distinguished from specified uses in the particular zones.   See Connecticut Post Limited Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn.App. 21, 32 (2000), rev'd in part other grounds, Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 488 (2003).   Thus, the plaintiffs have not by their allegations qualified themselves as aggrieved businesses.

The plaintiffs have offered relevant caselaw in support of their aggrieved status.   While relevant, these cases are readily distinguishable because in each, the aggrieved party had a cognizable legal interest that it was able to identify.

In Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 668 (2006), an oral agreement between a land owner and a non-owner developer to enter into a long term lease agreement constituted “a substantial and legitimate interest in the property” which was the subject of the zoning commission's denial of the developer's application for a special permit and that this was enough to establish the developer's aggrievement.

In Harris v. Zoning Commission, 259 Conn. 402 (2002), the plaintiffs were owners of large parcels of undeveloped land in New Milford.   The zoning commission amended the zoning regulations so as to exclude certain types of land from the calculation of minimum lot area.   The amendment applied town-wide to all residential zones.   The effect on the plaintiffs was to reduce the number of potential lots into which they could subdivide their land.   The plaintiffs alleged that they were statutorily aggrieved because they own land that was subject to the amendment.   They also alleged classical aggrievement.   The court held that the plaintiffs had a specific personal and legal interest in the subject matter of the commission's decision that satisfied the first prong of the two-prong test for classical aggrievement.

In Hayes Family Ltd. Partnership v. Planning and Zoning Commission, 98 Conn.App. 213 (2006), the plaintiff owned a 43.5 acre parcel on which it sought to construct multi-family housing.   The zoning commission enacted an amendment to the zoning regulations stating that the total number of multi-family units in a newly created, floating planned residential zone shall not exceed 10 per acre excluding wetlands and certain slopes.   The plaintiff's property was then in a rural residential zone and not in the floating zone.   Finding that the plaintiff was aggrieved because while the amendment applied to the whole town as a floating zone, it potentially applied to a limited portion, some of which was owned by the plaintiff, and possessed these physical characteristics.   The plaintiff therefore would be directly affected and consequently had a personal interest as distinguished from that of the community as a whole.

In Lewis v. Planning and Zoning Commission, 2 Conn.App. 284 (2001), the commission amended the subdivision regulations by expanding the definition of lot area to exclude land underneath lakes and ponds and to limit the amount of land area that could be included in the definition if it had slopes of 25% or greater.   The plaintiffs owned 277 acres of undeveloped land which comprised 6.7% of the subdividable land in the town.   The court held that classical aggrievement requires an “identifiable legal interest that a decision adversely affects.”   That legal interest was found in the fact that the plaintiffs' subdividable land will be diminished in value because less lots were obtainable as a result of the amendment.   Therefore, the plaintiffs demonstrated an instant economic impact on their property.

In contrast to the facts of the present case, each of the parties found aggrieved in the above cases had an identifiable legal interest that the decision of the particular zoning agency affected injuriously.   That legal interest stemmed directly from the parties' holding of some legal interest in real property such as an oral agreement to enter into a long term lease (Moutinho ) or actual ownership of property which would suffer some adverse consequences (Harris, Hayes, Lewis ).

In the present case the plaintiffs predicate their aggrieved status entirely on the invalidity of the zoning legislation pursuant to which the commission acted yet they do not identify the particular provision that causes them injury or from which Wex–Tuck improperly benefitted.   It is noted that in Modern Tire I not only was aggrievement not contested but the complaint contained allegations that as property owners within the affected zones as well as businesses, they had the potential future use of their property unlawfully restricted by the new legislation and thus were classically aggrieved.   The same is not true in the present case which is not an attack directed toward the legislation involved, rather it is an attack on the validity of the permits because they were issued pursuant to invalid regulations.   While there can be no question that an aggrieved person in an appeal from the granting of a special permit may challenge the validity of the regulation which purports to authorize the granting of that special permit, the invalidity of the regulation does not in and by itself furnish the factual basis for aggrievement.   See McKenzie v. Planning and Zoning Commission, 146 Conn. 406, 419 (2013), where aggrievement was derived not from the invalid regulations but from the plaintiffs' status as property owners within 100 feet of the defendant's property.

The plaintiffs' theory of aggrievement is a novel one because historically our aggrievement jurisprudence in the field of land use has dealt with some sort of injury to property rights, attenuated though they may be.  “An appellant who claims an adverse effect on his competitive business position because of zoning action allowing land use for a competitor is not aggrieved absent a showing of injury to his property rights.”   Fuller, Connecticut Land Use Law and Practice, Section 32:5, p. 74.   Plaintiffs' theory of aggrievement would create a new class of aggrieved party, viz:  one who derives his status solely from the invalidity of a regulation.   In the plaintiffs' scenario, it is the invalidity of the regulation alone which creates the aggrievement, not the possibility of injury to a legally cognizable interest which the regulation produces.   Such a result would turn our law of aggrievement on its head.   In other words the plaintiffs predicate their aggrievement on the very legislation which they attack, not some identifiable, independent source.   Such a bootstrap approach would enable anyone who owns property or operates a business (as in this case) in a particular zonal classification to enjoy standing to challenge any land use action in that classification no matter how far distant the particular use is located.

The failure to include proper allegations of aggrievement deprives the court of jurisdiction over this appeal.   It is therefore dismissed.

BY THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

FN1. Paragraph 31 reads as follows:31.  Each of the plaintiffs, an automotive business located in Newington in the PD or B–BT Zone, is aggrieved by the defendant Commission's amended regulations in that:a. each has a specific, special, legally protected and particular interest, different from that of the general public, in the adjudication of its Modern Tire Appeal claim that the August 2012 regulation amendments that are the basis of the Wex–Tuck Application are invalid;b. the 2012 amendments alter the procedural process and substantive use, dimension, and performance standards applicable to the plaintiffs' existing businesses;c. the plaintiffs in the Modern Tire Appeal claim specifically that the 2012 amendments violate the uniformity requirement of Section 8–2, by allowing unequal treatment by the Commission of similarly-situated property business owners;  andd. the Wex–Tuck approvals are otherwise illegal for the reasons stated in this appeal..  FN1. Paragraph 31 reads as follows:31.  Each of the plaintiffs, an automotive business located in Newington in the PD or B–BT Zone, is aggrieved by the defendant Commission's amended regulations in that:a. each has a specific, special, legally protected and particular interest, different from that of the general public, in the adjudication of its Modern Tire Appeal claim that the August 2012 regulation amendments that are the basis of the Wex–Tuck Application are invalid;b. the 2012 amendments alter the procedural process and substantive use, dimension, and performance standards applicable to the plaintiffs' existing businesses;c. the plaintiffs in the Modern Tire Appeal claim specifically that the 2012 amendments violate the uniformity requirement of Section 8–2, by allowing unequal treatment by the Commission of similarly-situated property business owners;  andd. the Wex–Tuck approvals are otherwise illegal for the reasons stated in this appeal.

Mottolese, A. William, J.T.R.