49 Conn. App. 669 | Conn. App. Ct. | 1998
Lead Opinion
Opinion
The plaintiff appeals from the trial court’s judgment dismissing his complaint, which sought a judgment of mandamus and injunctive relief requiring the town of Clinton defendants
Chelsea was constructing a shopping center in the town at the time the complaint was filed.
Chelsea filed a motion to dismiss on the ground that the plaintiff had failed to exhaust his administrative remedy of appealing from the zoning commission’s approval of Chelsea’s shopping center site plan. The trial court granted the motion to dismiss on that ground. While we agree that a judgment of dismissal by the trial court should have been rendered, we so conclude on the ground that the plaintiff lacked standing to bring this action. The defendant Chelsea has raised this alternate ground to affirm the judgment of dismissal. See Cotto v. United Technologies Corp., 48 Conn. App. 618, 624-25, 711 A.2d 1180, cert. granted on other grounds, 245 Conn. 915, 717 A.2d 233 (1998); Foley v. Huntington Co., 42 Conn. App. 712, 742, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).
The zoning commission’s approval of Chelsea’s site plan for the shopping center was granted on January
No allegation of the complaint, however, attacks the zoning commission’s approval of the site plan, nor does the plaintiff seek to have the approval invalidated. The entire complaint is concerned, not with the approval of the site plan, but with Chelsea’s alleged failure to comply with certain provisions of the zoning regulations in the course of constructing the shopping center. The plaintiff claims that he could not have known of the alleged violations with respect to building height and store area at the time the site plan was approved, and could not have appealed on grounds that did not then exist. We agree with the plaintiff.
At the time the alleged violations became evident, the plaintiff alleges that he brought them to the attention of the zoning enforcement officer. Although the plaintiff did not pursue an administrative appeal from the zoning enforcement officer’s alleged refusal to enforce the zoning regulations, it is unclear in this case whether such an administrative remedy was available to him. Even if we assume that it was, the plaintiff need not have exhausted that remedy before bringing this action.
We next consider whether the plaintiff had standing to pursue a direct appeal. There are a number of cases in which plaintiffs have pursued direct appeals without having first exhausted administrative remedies, but such cases do not establish that persons such as the plaintiff in this case have standing. These cases are exceptions to the general rule that administrative remedies must be exhausted as a prerequisite to judicial appeals. In Reynolds v. Soffer, 183 Conn. 67, 438 A.2d 1163 (1981), it was held that a person specifically and materially damaged by a violation of zoning regulations that has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation without exhausting administrative remedies. The complaint in Reynolds alleged a nuisance that “adversely affects the plaintiffs’ property, decreases its value, increases the risk of fire and other dangers, specifically endangering health as a result of rodents migrating from the defendants’ property . . . and noise, odors, pollution, and disease-causing substances discharged from a new ventilating system.” Id., 68. Reynolds was concerned with when a direct appeal may be taken without first having exhausted the appellate administrative route. It was not concerned with the standing of the person or entity to bring that direct appeal.
In cases such as Reynolds, the claims for relief included common-law nuisance as well as injunctive relief. All assumed that the plaintiffs had standing. See Cummings v. Tripp, supra, 204 Conn. 76 and n.9 (nuisance action claiming “ ‘grievous injury, damage and harm,’ ” and “annoyance, personal inconvenience and irritation”); Scoville v. Ronalter, 162 Conn. 67, 76, 291 A.2d 222 (1971) (“ ‘sight, noise and disturbance of construction,’ ” and devaluation of plaintiffs’ property);
Where a party is found to lack standing, the trial court is without subject matter jurisdiction to adjudicate the cause of action. Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). Lack of subject matter jurisdiction may be raised at any time. Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 574-75, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). “ ‘Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).’ ” Amodio v. Amodio, 45 Conn. App. 737, 739, 697 A.2d 373 (1997), cert. granted on other grounds, 243 Conn. 963, 707 A.2d 1265 (1998).
A motion to dismiss admits all facts well pleaded. Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996) , rev’d on other grounds, 243 Conn. 1,699 A.2d 995 (1997). “In ruling upon whether a complaint survives a motion to dismiss, 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. Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990), and cases cited therein.” Pamela B. v. Ment, 244 Conn. 296, 308-309, 709 A.2d 1089 (1998). In the present case, no evidence was offered in the trial court on the issue of standing. For purposes of determining whether the plaintiff has standing, we assume the factual allegations in the complaint to be true.
“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. . . . Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief.” (Citations omitted; internal quotation marks omitted.) Id., 794.
“Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. [Assn. of Data Processing Service Organizations, Inc.
The zone of interests test was articulated by the United States Supreme Court in Assn. of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. 150. In that case, the petitioners, providers of data processing services to businesses generally, challenged a ruling by the United States Office of the Comptroller of the Currency permitting national banks, such as the respondent bank, to make data processing services available to other banks and bank customers. Id. The Supreme Court held that the petitioners had standing to maintain the action, in part because it concluded that the particular petitioner was a competitor within the zone of interests protected by § 4 of the Bank Service Corporation Act of 1962, 12 U.S.C. § 1864. Assn. of Data Processing Service Organizations, Inc. v. Camp, supra, 156-57. The petitioners not only alleged that competition by national banks in the business of providing data processing services might entail some future loss of profits for the petitioners, but also that the respondent bank was performing or preparing to perform such services for two customers for whom one of the petitioners had previously agreed or negotiated to perform such services. Id., 152.
“It has been pointed out that the ‘zone of interests’ test bears a family resemblance to the ‘scope of the risk’ doctrine in the law of torts. L. Tribe, American Constitutional Law [1978], pp. 97-98. In tort law, it is
Whether the plaintiff in the present case has standing to challenge the zoning enforcement officer’s alleged failure to enforce particular zoning regulations depends on whether any duty was owed to the plaintiff, that is, whether the plaintiff was within the zone of interests protected by the regulations.
Our case law indicates that the primary purpose of zoning is to protect the public interest. “The object of zoning, primarily, is to promote the health, safety, welfare and prosperity of the community. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 539, 45 A.2d 828 (1946).'' Stephen Reney Memorial Fund v. Old Saybrook, 4 Conn. App. 111, 113, 492 A.2d 533 (1985); see also Sonn v. Planning Commission, 172 Conn. 156, 161, 374 A.2d 159 (1976) (“[mjunicipal planning is intended to promote the general welfare and prosperity
The plaintiff here claims that he has standing to challenge the zoning enforcement officer’s alleged failure to enforce the town zoning regulations because this lack of enforcement puts him at an economic and competitive disadvantage. He does not allege with any specificity that the claimed failure to enforce the regulations against the defendant Chelsea in any way infringed on his current business operations. For example, the plaintiffs complaint contains no allegation that he built, developed or owned another shopping center in the town that lost potential tenants to Chelsea because of the alleged selective zoning enforcement. In fact, the plaintiff does not even allege that he complied with the regulations he claims Chelsea violated. He merely alleges that he was “subject to” those regulations.
The plaintiff is essentially claiming that he is harmed by unfair or illegal competition arising from the alleged failure of the zoning enforcement officer to enforce the regulations. In applying the zone of interests test to
In Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987), the plaintiff physician alleged unfair or illegal competition in his appeal from a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in the state. The trial court dismissed the plaintiffs claim. In holding that the plaintiff physician had standing to appeal the board’s ruling, our Supreme Court did not explicitly discuss the zone of interests test, but did state that “[a] licensed physician has a right and estate in his profession of which he cannot be deprived without due process of law. . . . Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valuable franchise, or a valuable privilege.” (Citations omitted; internal quotation marks omitted.) Id., 300. Thus, the plaintiff physician asserted an interest that was within the zone of interests to be protected by a constitutional guarantee, namely the right not to be deprived of his property interest in his medical license without due process of law. The plaintiff in the present case made no such allegation of a property interest entitling him to protection by the constitutional guarantee of due process.
In Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 169, 592 A.2d 386 (1991), the plaintiffs challenged a decision of the defendant department of public utility control (department) that granted a certificate of public convenience and necessity to a potential competitor. The plaintiffs in that case held certificates similar to the one being challenged. Id. Again, the court did not discuss explicitly the zone of interests test, but concluded that the plaintiffs had standing to appeal the department’s decision because
In United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 663 A.2d 1011 (1995), the plaintiff, alleging unfair or illegal competition, challenged the granting of a certificate of public convenience and necessity to a potential competitor. In that case, our Supreme Court explicitly applied the zone of interests test to conclude that the plaintiff had no standing to vindicate the interests protected by three out of four statutory sections at issue. The court held that consumers were the only class intended to be protected by those three sections and that competitors had no standing to assert violations of them. Id., 346. As in Light Rigging Co., a particular statute was alleged and relied on to grant protection to the plaintiffs as competitors.
As to the fourth statutory section at issue in United Cable Television Services Corp., the parties did not dispute that the plaintiff had standing to challenge its alleged violation.
In Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 152, the plaintiffs held licenses to provide ambulance services in a particular county. They appealed to the trial court from the decision of the defendant department of public health and addiction services (public health department) granting another entity a license to provide ambulance services in the same area. The court applied the zone of interests test and held that the trial court properly dismissed the plaintiffs’ appeal. The court’s rationale was that the statute concerning the licensing of ambulance services requires the public health department primarily to protect the public at large and not the interests of individual competitors such as the plaintiffs. Id., 165.
As we have noted, and as included in the stated purposes of the zoning regulations of the town of Clinton, the primary purpose of zoning is to protect the public at large, not the competitive interests of individual developers such as the plaintiff. Section 1.4 of the Clinton zoning regulations provides in part: “Purpose: The purpose of these regulations is to promote the health, safety and general welfare of the community; to conserve the value of property and encourage the most appropriate use of land throughout the Town . . . .”
The plaintiff has failed to cite any statute, regulation or constitutional guarantee that places him within a protected zone of interests. His brief obliquely refers
The judgment is affirmed.
In this opinion O’CONNELL, C. J., concurred.
These defendants are Barbara Swan, the town’s zoning enforcement officer; the town planning and zoning commission (zoning commission); John Bennet, counsel to the commission; and the town of Clinton.
The complaint was filed in July, 1996, and the shopping center opened for business in September, 1996.
The motion to dismiss was not based on the plaintiffs failure to exhaust any administrative remedy of appealing from the alleged refusal of the zoning enforcement officer to enforce the regulations, but on his failure to appeal from the approval by the zoning commission of the site plan. The plaintiffs complaint gives no date for the alleged oral refusal of the zoning enforcement officer.
Chelsea argues in its brief that it did not violate the square foot limitation and the tower height limitation as provided in the town’s zoning regulations.
It is well established that an administrative agency’s regulations have the same force and effect of a statute unless they are shown to be inconsistent with the authorizing statute. Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990); Cameron v. Alander, 39 Conn. App. 216, 220, 664 A.2d 332, cert. denied, 235 Conn. 924, 666 A.2d 1185 (1995).
The Supreme Court affirmed the trial court’s decision not to reach the merits of the plaintiffs claim under this fourth section because the plaintiff failed to provide the trial court with an adequate record for review of the claim.
Concurrence Opinion
concurring in part and dissenting in part. I agree with the majority that the trial court incorrectly dismissed this action for lack of subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies. The complaint alleges zoning violations with respect to building height and store area that did not occur until some time after the zoning commission had approved Chelsea’s site plan for the shopping center. No administrative remedy was available by the time the claimed violations reasonably could have been discovered.
I disagree, however, with the conclusion of the majority that the plaintiff lacks standing to protect his economic interests as a developer and owner of other shopping centers in the town of Clinton. The complaint alleges that the claimed zoning violations have been called to the attention of the zoning commission, its counsel and the zoning enforcement officer for the town, who has refused the plaintiffs requests for cease and desist orders. The allegation of aggrievement is that the plaintiff is “a major developer, owner, and builder in the town who is subjected to the [zoning regulations] of the Town, [and] the nonenforcement of these regulations as to Chelsea puts the plaintiff at a severe economic and competitive disadvantage, is a grave injury
General Statutes § 8-2 (a) provides in part that “[a] 11 such [zoning] regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .” Implicitly, this provision requires uniform enforcement of zoning regulations. “The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike . . . .” Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975). “Any person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation.” Karls v. Alexandra Realty Corp. 179 Conn. 390, 401, 426 A.2d 784 (1980). “If the plaintiffs have suffered special damages as alleged in their complaint, the court has equitable jurisdiction and may grant injunctive relief.” Blum v. Lisbon Leasing Corp., 173 Conn. 175, 180, 377 A.2d 280 (1977). Courts have frequently applied these principles to find standing on the part of property owners claiming harm resulting from activities on other land that violate zoning regulations. Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981); Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975). The requirement of “special damages” serves to differentiate persons having standing to seek relief for zoning violations from the general public.
I would reverse the judgment of dismissal and remand the case to the trial court for further proceedings to provide the plaintiff an opportunity to prove his claim of standing based on unfair competition.
In his brief, the plaintiff contends that Chelsea will have an unfair advantage in attracting customers to its shopping center if the towers it has erected on the shopping center buildings are permitted to exceed the building height limitation that other shopping centers in Clinton must obey. He also maintains that allowing Chelsea to exceed the store area restriction results in an unfair advantage in obtaining the larger retail stores as lessees for its shopping center.