NORTH BRANFORD CITIZENS AGAINST BULK PROPANE STORAGE v. TOWN OF NORTH BRANFORD ET AL.
(AC 46854)
Appellate Court of Connecticut
January 28, 2025
Alvord, Clark and Westbrook, Js.
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Syllabus
The plaintiff, an association comprised of town residents who opposed the construction of a bulk propane storage facility in the town, appealed from the judgment of the trial court dismissing its declaratory judgment action against the defendants. The plaintiff claimed that the court erred in dismissing the action on the ground that it failed to exhaust its administrative remedies. Held:
This court affirmed the trial court‘s judgment dismissing the action on the alternative ground that the plaintiff lacked standing to maintain the action against the defendants, the plaintiff having failed to allege sufficient facts to establish that any of its individual members were aggrieved, as is required to establish associational standing.
The plaintiff‘s allegation that certain actions by one of the defendants, a town official, violated the public trust, without any allegation of how that violation affected the plaintiff‘s individual members in a manner distinguishable from those in the community as a whole, was insufficient to establish that the plaintiff‘s members were aggrieved.
Argued October 10, 2024—officially released January 28, 2025
Action seeking a judgment declaring that certain zoning regulations were invalid, brought to the Superior Court in the judicial district of New Haven, where the court, Kamp, J., granted the defendants’ motions to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Peter C. White, for the appellant (plaintiff).
Bryan L. LeClerc, for the appellees (named defendant et al.).
Jeffrey T. Beatty, for the appellee (defendant 2772 BPR, LLC).
Timothy J. Lee, for the appellee (defendant Donald Fucci).
Opinion
CLARK, J. The plaintiff, North Branford Citizens Against Bulk Propane Storage, appeals from the judgment of the trial court dismissing its declaratory judgment action against the defendants, the Town of North Branford (town), North Branford Planning and Zoning Commission (commission), Donald Fucci, and 2772 BPR, LLC (company). On appeal, the plaintiff claims that the court erred in dismissing the action on the ground that the plaintiff failed to exhaust its administrative remedies. We affirm the judgment of the trial court on the alternative ground that the plaintiff lacked standing to maintain the action.
The complaint, viewed in the light most favorable to the plaintiff; see State Marshal Assn. of Connecticut, Inc. v. Johnson, 198 Conn. App. 392, 394, 234 A.3d 111 (2020); alleges the following facts that are relevant to our resolution of this
The complaint alleges that Fucci and Anthony Candelora, who was then mayor of the town, attended a closed hearing of the commission to lobby in favor of the amendment to the zoning regulations in order to advance Fucci‘s personal pecuniary interests by facilitating the sale of the property to the company. Thereafter, the town council, with Fucci voting in favor, voted to replace two members of the commission who had voiced objections to the amendment. At the next meeting of the newly comprised commission, on August 7, 2014, the commission approved the amendment. The complaint further alleges that Fucci and Candelora used their influence to replace members of the town‘s Inland Wetlands and Watercourse Agency (IWWA) and attended a closed meeting of the IWWA on August 14, 2014, in an attempt to ensure approval of the inland wetlands portion of the company‘s permit application.1
In 2772 BPR, LLC v. Planning & Zoning Commission, 207 Conn. App. 377, 262 A.3d 906, cert. denied, 340 Conn. 908, 264 A.3d 1001 (2021), this court addressed the company‘s appeal from the commission‘s denial of its site plan application. Though not set forth in the complaint, to provide additional context for the plaintiff‘s claim, we note the following additional facts and procedural history set forth in our decision in 2772 BPR, LLC: “The amended regulations became effective on September 5, 2014. On that date, the [company] submitted a site development plan application to the commission in which it sought approval to construct on the property two 30,000 gallon propane storage tanks, a garage, a connector building, an office building, and canopies. On October 2, 2014, the commission held a public hearing on the [company‘s] application. After hearing testimony from the [company], the commission set aside the application pending review of the inland wetlands portion of the application. On January 17, 2017, with regard to the wetlands matter, the Department of Energy & Environmental Protection issued a final decision in favor of the [company], which allowed it to proceed with its application before the commission. The commission continued the public hearing on the site development plan application on March 2, March 9, and March 16, 2017.”
“On March 16, 2017, the commission voted three to two to deny the [company‘s] application.” Id., 383. The company appealed the denial of its application to the Superior Court, which denied the appeal. Id., 384–85. On September 14, 2021, this court reversed that judgment, concluding that the commission improperly denied the company‘s application. Id., 396.
The plaintiff commenced the present action on March 3, 2017, while the company‘s site plan application was pending before the commission. The complaint contained a single count seeking a judgment declaring the amended zoning regulations “invalid for conflict of interest by members of the town council, for defective and inadequate notice by the [commission], or as against public policy.” At the time it filed the complaint, the plaintiff also filed an ex parte motion for a temporary injunction seeking to enjoin the construction of the facility “until the validity of the zoning regulations has been established.”2 On the same day, the court, A. Robinson, J., denied the motion for a temporary injunction.
On April 5, 2017, Fucci filed a motion to dismiss claiming, inter alia, that the plaintiff lacked standing and failed to exhaust its administrative remedies.3 In relevant part, Fucci argued that the plaintiff failed to satisfy the test for associational standing because the complaint failed to allege sufficient facts to establish that the individual members of the association would have had standing to maintain the action in their own right. The plaintiff filed an opposition to the motion to dismiss, in which it argued that the complaint sufficiently alleged that it had standing to maintain the action on behalf of its members. The town and the commission filed a joint motion to dismiss on March 7, 2022, and the company filed a motion to dismiss on November 16, 2022.4 Both motions expressly adopted the arguments set forth in Fucci‘s motion with respect to the plaintiff‘s standing.
The court, Kamp, J., heard argument on the motions to dismiss on April 24, 2023. During the argument, the parties focused primarily on the defendants’ claim that the plaintiff failed to exhaust its administrative remedies. Toward the end of the hearing, the court briefly addressed the defendants’ claim that the plaintiff lacked standing. Specifically, the court asked the plaintiff how it had standing to maintain the action on behalf of its members given that the complaint does not identify any of the individual
On appeal, the plaintiff claims that the court erred in granting the motions to dismiss on the ground that the plaintiff failed to exhaust its administrative remedies. On October 30, 2024, following oral argument, we ordered the parties to file supplemental memoranda “addressing whether the trial court‘s judgment of dismissal may be affirmed on the alternative ground that the plaintiff . . . lacked standing to commence the underlying action.”5 On the basis of our review of the record and the supplemental memoranda filed by the parties, we conclude that the plaintiff lacked standing to maintain the action.
“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.
“It is a basic principle of our law . . . that the [plaintiff] must have standing in order for a court to have jurisdiction to render a declaratory judgment.” (Internal quotation marks omitted.) Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 218 Conn. 335, 346, 589 A.2d 356 (1991). “The declaratory judgment procedure . . . may be employed only to resolve a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations
“Standing is the legal right to set judicial machinery in motion. . . . 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.” (Internal quotation marks omitted.) State Marshal Assn. of Connecticut, Inc. v. Johnson, supra, 198 Conn. App. 397–98. “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.” (Citations omitted; internal quotation marks omitted.) Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990). “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) State Marshal Assn. of Connecticut, Inc. v. Johnson, supra, 398.
The sole plaintiff in the present case is an association of residents of the town. The plaintiff does not claim that it has standing on the basis that the plaintiff‘s own interests were injured by the defendants’ actions; rather, the plaintiff claims that it has standing to vindicate alleged injuries to its members’ interests.
In Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986), our Supreme Court adopted the test for associational standing articulated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). Under that test, “[a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Internal quotation marks omitted.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, supra, 616.
The defendants in the present case claim only that the plaintiff failed to satisfy the first prong of the Worrell test. “To meet that prong, an association must demonstrate aggrievement on the part of its members. . . . An association satisfies that burden by establishing that at least one of its members is aggrieved by the action in question. . . . Accordingly, resolution of the question of the plaintiff‘s associational standing hinges on whether the plaintiff has established that one of its members is aggrieved.” (Citations omitted.) State Marshal Assn. of Connecticut, Inc. v. Johnson, supra, 198 Conn. App. 401-402.
“There are two general types of aggrievement, namely, classical and statutory; either type will establish standing . . . .” (Internal quotation marks
In the present case, the complaint contains no specific allegations describing any interest held by the plaintiff‘s members that is distinguishable from that of the general public and that would be harmed by the defendants’ actions. The complaint merely alleges that the plaintiff‘s members are “[town] residents who oppose construction of a bulk propane storage facility at [the property],” and that the plaintiff “has members who would otherwise have standing to sue in their own right.” It is well established that such conclusory allegations are insufficient to establish that the plaintiff‘s members were aggrieved; rather, the complaint must contain “supporting allegations as to the particular nature of the aggrievement . . . .” (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 543, 833 A.2d 883 (2003); see also State Marshal Assn. of Connecticut, Inc. v. Johnson, supra, 198 Conn. App. 405 (“[a]lthough the plaintiff broadly asserts an interest in ‘declaring the invalidity of [the defendant‘s] actions’ . . . such a conclusory statement does not satisfy the first prong of the classical aggrievement test“); Concerned Citizens for the Preservation of Watertown, Inc. v. Planning & Zoning Commission, 118 Conn. App. 337, 342, 984 A.2d 72 (2009) (“conclusory statements do not satisfy the appellant‘s burden of proving aggrievement“), cert. denied, 294 Conn. 934, 987 A.2d 1028 (2010). Thus, the bare allegation that the plaintiff‘s members “oppose construction of a bulk propane storage facility” and “would otherwise have standing to sue in their own right” are not sufficient to establish aggrievement. See State Marshal Assn. of Connecticut, Inc. v. Johnson, supra, 404-405.
The plaintiff, however, makes two separate arguments in support of its claim that the complaint sufficiently alleged that its members were aggrieved. First, the plaintiff relies on allegations, made in support of its claim for temporary injunctive relief, that its members would be irreparably harmed because the amended zoning regulations would result in “[a]dditional traffic onto Foxon Road, clogging an already congested commuter road,” “[d]iminished property values due to the
members were aggrieved because Fucci‘s alleged “serious violation of the public trust” is sufficient to establish aggrievement for “any North Branford citizen, regardless of location . . . .” (Citations omitted.) We conclude that the plaintiff has failed to allege sufficient facts to establish that any of its members have a specific, personal or legal interest in the subject matter as required to establish classical aggrievement.
The requirement that a plaintiff allege specific facts demonstrating how it was aggrieved “is not merely a matter of form,” but, rather, “provides an opportunity for the opposing party to answer in denial, thereby placing the jurisdictional fact[s] into dispute for the court‘s resolution.” (Internal quotation marks omitted.) Mayer v. Historic District Commission, 325 Conn. 765, 791, 160 A.3d 333 (2017). “[T]he burden [is] upon the pleaders to make such averments that the material facts [alleged in the complaint] should appear with reasonable certainty . . . . Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . But essential allegations may not be supplied by conjecture or remote implication.” (Emphasis added; internal quotation marks omitted.) Stone v. Pattis, 144 Conn. App. 79, 99, 72 A.3d 1138 (2013); see also Pike v. Bugbee, 115 Conn. App. 820, 828 n.5, 974 A.2d 743 (2009) (“[a]lthough the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading“), cert. granted, 293 Conn. 923, 980 A.2d 912 (2009) (appeal withdrawn December 1, 2011).
Our Supreme Court has emphasized that the purpose of the first prong of the associational standing test adopted in Worrell is to ensure that there is a justiciable controversy to be resolved by requiring the associational plaintiff “to establish . . . that its members would otherwise have standing to sue in their own right . . . .” (Internal quotation marks omitted.) Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, supra, 218 Conn. 345. “Associational standing, then, is derivative of—and not independent from—individual standing.” Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1008 (7th Cir. 2021); see also United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996) (first prong of associational standing test “guarantees the satisfaction of [standing] elements by requiring an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association“). Thus, in assessing whether the plaintiff satisfied the first prong of the associational standing test, we are required “to scrutinize the nature of the interests of the association‘s members” to determine whether “the members had a legal interest in the controversy distinguishable from the interest of the general public.” Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, supra, 218 Conn. 345-46.
We first address the plaintiff‘s argument that allegations that the plaintiff‘s members would be irreparably harmed are sufficient to establish aggrievement. The plaintiff essentially argues that we should infer, from a general description of the type of harm it claims would be caused by the construction of the facility, that at least one unidentified member of the plaintiff possesses an interest that would suffer such harm. The plaintiff, however, does not cite a single case to support that contention, and our own research has not uncovered any case in which a court has found associational standing based on such sparse allegations. To the contrary, in cases in which our courts have found that an association had standing to represent its members’ interests, there was sufficient information about the association‘s individual members to support a claim that at least one of the members had an interest distinguishable from the public at large. See, e.g., Connecticut Assn. of Not-For-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 386-88, 709 A.2d 1116 (1998) (association of not-for-profit nursing homes had standing to challenge Medicaid reimbursement methodology applied only to not-for-profit nursing homes that allegedly resulted in lower reimbursement rates because practice affected plaintiff‘s members and record showed that at least some members had not agreed to accept methodology); Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 305, 524 A.2d 636 (1987) (association of medical doctors had standing to challenge declaratory ruling determining that treatment of ankle was within scope of practice of podiatrists, who are not medical doctors, where specific individual member was found to have standing).
In the present case, the complaint does not identify any of the plaintiff‘s members or describe any member‘s interest beyond the vague allegation that they reside in the town and oppose construction of the facility. There is no allegation, for instance, that any member of the plaintiff owns or resides on property that is adjacent to or in close vicinity to the facility. Nor is there any allegation describing how likely it is that a BLEVE would occur, what would happen if a BLEVE did occur, how it would affect the surrounding area, or the extent of the area that would be affected. The allegations that the plaintiff‘s members would suffer “[d]iminished property values due to the proximity of a [BLEVE]” and “[a]nxiety” due to the risk of a BLEVE, therefore, are too vague and uncertain to infer that any of the plaintiff‘s members would be harmed in a manner that is distinguishable from the general public. Similarly, in the absence of any allegation that the plaintiff‘s members either reside near or regularly travel
Our conclusion is supported by a number of federal cases that have applied the associational standing test established in Hunt, which our Supreme Court adopted in Worrell. In Summers v. Earth Island Institute, 555 U.S. 488, 498–99, 129 S. Ct. 1142, 173 L. Ed. 2d 1 (2009), the United States Supreme Court, citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 221, 235, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990), a case that was decided on cross motions for summary judgment, noted that an associational plaintiff is required to identify at least one specific member who suffered the requisite harm necessary to establish standing. Since Summers, several federal courts of appeals have held that the same requirement applies at the pleading stage. See National Infusion Center Assn. v. Becerra, 116 F.4th 488, 497 (5th Cir. 2024) (“[t]o invoke associational standing . . . [the plaintiff] must identify at least one member that has suffered or will suffer harm” (footnote omitted)); Assn. of American Physicians & Surgeons v. United States Food & Drug Administration, 13 F.4th 531, 543 (6th Cir. 2021) (to meet first prong of Hunt test, “an organization must do more than identify a likelihood that the defendant‘s conduct will harm an unknown member in light of the organization‘s extensive size or membership base,” but “must instead identify a member who has suffered (or is about to suffer) a concrete and particularized injury from the defendant‘s conduct“); Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (holding that associational plaintiff was required to identify in its complaint at least one member with standing); Southern Walk at Broadlands Homeowner‘s Assn., Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (affirming dismissal where association “failed to identify a single specific member injured by the [challenged conduct]” (emphasis omitted)); New Jersey Physicians, Inc. v. President of the United States, 653 F.3d 234, 241 (3d Cir. 2011) (plaintiff failed to meet burden to allege associational standing where “the complaint fail[ed] to establish that [the only member identified in the complaint] has experienced any injury in fact“).
Although some federal courts of appeals have not required an associational plaintiff to include allegations revealing the specific identity of an individual member at the pleading stage, even those courts have held that a complaint must include sufficient specific factual allegations to support a claim that some individual member or members of the association have an interest in the dispute distinguishable from the general public; allegations of “generalized harm to a group of individual members will not do . . . for associational standing.” Prairie Rivers Network v. Dynegy Midwest Generation, LLC, supra, 2 F.4th 1010; id. (even if associational plaintiff was not required to identify specific members with standing at pleading stage, “it must . . . provide some way of showing that
We next address the plaintiff‘s argument that Fucci‘s alleged violation of the public trust was sufficient to establish aggrievement. Relying on Low v. Madison, 135 Conn. 1, 60 A.2d 774 (1948), and Murach v. Planning & Zoning Commission, 196 Conn. 192, 491 A.2d 1058 (1985), the plaintiff contends that its members were aggrieved because “a serious violation of the public trust . . . has been grounds to invalidate zoning amendments since [Low].”
The plaintiff‘s reliance on Low and Murach conflates the issue of whether its complaint states a cognizable cause of action with the question of whether the plaintiff has standing to pursue that claim. Although Low and its progeny stand for the proposition that a public official‘s participation in a matter in which he has a pecuniary or personal interest may be grounds for invalidating a zoning decision, those cases did not dispense with the requirement that a plaintiff pursuing such a claim establish aggrievement by alleging a specific, personal or legal interest and individualized harm. Rather, our courts have addressed the threshold question of standing separately from the merits of claims seeking to invalidate a zoning regulation under Low. See Murach v. Planning & Zoning Commission, supra, 196 Conn. 194 n.8 (noting, prior to addressing merits of claim under Low, that “[t]he trial court specifically found that [the plaintiffs] have standing to pursue this appeal [from the commission‘s decision] under [General Statutes] § 8-28 as abutting owners” (internal quotation marks omitted)); accord Schwartz v. Hamden, 168 Conn. 8, 10, 13, 18, 357 A.2d 488 (1975) (where several plaintiffs appealed challenging decision of planning and zoning commission based on, inter alia, alleged conflict of interest by member of commission, Supreme Court affirmed trial court‘s dismissal of appeal by one group of plaintiffs for lack of aggrievement); Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502-503, 264 A.2d 566 (1969) (prior to addressing merits of plaintiff‘s challenge to zoning decision based on Low, Supreme Court concluded that trial court properly found plaintiff to be aggrieved because his status as record owner of one affected parcel and contract purchase of another gave him “a specific, personal and legal interest in the subject matter of the commission‘s decision“). These cases are consistent with the “well established principle that common concern for obedience to law is not a direct injury that supports standing.” (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 327, 939 A.2d 1146 (2008). Accordingly, we conclude that the allegation that Fucci‘s actions violated the public trust, without any allegation of how that violation affected the plaintiff‘s individual members in a manner distinguishable from those in the community as a whole, was insufficient to establish that the plaintiff‘s members were aggrieved.
On the basis of the foregoing, we conclude that the plaintiff lacked standing to maintain this action against the defendants and, therefore, that the trial court lacked subject matter jurisdiction over the action. We therefore affirm the trial court‘s judgment dismissing the action on this alternative ground.
The judgment is affirmed.
In this opinion the other judges concurred.