Opinion
No. CV04-4004041
July 12, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant Crystal Developers, LLC is the owner of property at 25 and 49 East Industrial Road in Branford. Defendant Ring's End, Inc. submitted a special exception application to the defendant Commission which sought permission to construct an addition to an existing building and to use this facility in accordance with Section 24. Schedule A, Line C-17 and Line C-1.1 of the town zoning regulations — "a contractor lumber yard with storage of building materials and accessory retail on the property," (paragraph 5 of the complaint).
The property is located in a General Industrial District #2 Zone (IG-2) where the following relevant uses are allowed by Special Exception as set forth in par. 6a and b of the complaint and paragraph 7.
6a. C-1.1 Stores and other buildings and structures where goods are sold or service is rendered at retail when accessory and subordinate to a permitted use on the same premises.
b. C-17 Warehousing and wholesale business.
7. Section C-1 of the IG-2 Zone expressly prohibits, Stores and other buildings and structures where goods are sold or service is rendered primarily at retail.
8. Section 23.12 of the Town of Branford Planning and Zoning Regulations states:
General Industrial District #2: These districts consist of areas intended to be used for heavy commercial and industrial development on a less extensive basis than the IG-1 Districts. They are designed for occupancy on somewhat larger sites with more spacious setbacks, in order to assure a high quality of development within the District and an agreeable relationship to adjacent districts. Further development of retail, business and residential uses in these districts will be inconsistent with their purpose and the purpose of the districts.
The defendant Commission approved the application for a special exception. When the complaint was first filed, appealing the Commission's action, there were two listed plaintiffs Hamson Wilrock Realty, LLC and Branford Building Supplies, Inc.
(A.)
Pursuant to Section 8-8(b) of the General Statutes . . . "plaintiff's (appealing a decision of a local zoning authority) must establish that they are aggrieved by the decision of a zoning authority in order to have standing to appeal to the Superior Court. `The question of aggrievement is essentially one of standing' . . . The issue of standing invokes the trial court's subject matter jurisdiction . . . The issue cannot be waived. `Proof of aggrievement is essential to a trial court's jurisdiction of a zoning appeal'" RR Pool Home Inc. v. Zoning Bd. of Appeals, 43 Conn.App. 563, 567-68 (1996).
There are two types of aggrievement, "statutory aggrievement" and "classic aggrievement." Statutory aggrievement is set forth in subsection (a) of § 8-8 of the General Statutes. There it says that an "aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of land involved in the decision of the board" (emphasis by court). Subsection (b) focuses on the actual right of appeal by saying "any person aggrieved by any decision of a zoning board . . . may take an appeal to the Superior Court . . ."
The definition of "aggrieved person" in subsection (a) by use of the word "includes" contemplates a universe broader than a "statutorily aggrieved" party for the purpose of defining persons who have a right to appeal under subsection (b). Thus it is that "classic aggrievement" also allows a party to take an appeal under subsection (b) although the party is not statutorily aggrieved.
"Classic aggrievement" requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision (by the local zoning authority), as apposed 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 legal interest," Stauton v. Planning Zoning Comm., 271 Conn. 152, 157 (2004).
The plaintiff Hamson Wilrock Realty, LLC was alleged to have been "statutorily aggrieved" in paragraph 14 of the complaint because it is the "owner of land located within a radius of 100 feet of the Property" which is the subject of the appeal. However, another judge allowed that plaintiff to withdraw from the appeal. The only remaining plaintiff is Branford Building Supplies, Inc. In order for the court to have jurisdiction over this matter the remaining plaintiff, Branford Building Supplies, Inc. must show that it has standing to maintain this appeal; in other words that it is statutorily or classically aggrieved. Paragraph 13 sets out the basis of the aggrievement claim. It says that it is in "close proximity" to the subject property but that will not suffice for statutory aggrievement. The plaintiff's brief and a reading of the entire complaint indicate that Branford Building Supplies, Inc. relies on classic aggrievement.
The plaintiff's objection to the motion to dismiss sets forth its argument as to classic aggrievement.
First it is said the plaintiff is a competitor of Ring's End and as such it has "a specific personal and legal interest in a decision of the defendant zoning commission which will result in unfair competition to the plaintiff."
Second, the plaintiff has been injured because "the plaintiff now faces unfair competition in the form of a competitor operating a largely retail business in an industrial zone where such retail use is not permitted. The plaintiff had a reasonable expectation based on the regulations that it would be free from retail competition in an industrial zone; "the plaintiff is a retail provider of building supplies and materials, and as such, has the reasonable expectation that he (sic) would not be allowed to sell his goods at retail in an IG-2 Zone.
(B.) CT Page 11144
The court will first discuss some procedural matters. A motion to dismiss an appeal such as this can be based on a claim that the complaint on its face does not set forth the factual prerequisites for aggrievement and thus that the court has no jurisdiction. This procedure is a descendant of the old motion to erase. In Maloney v. Taplin, 154 Conn. 247, 249 (1966) the court said "The matter of aggrievement goes to the jurisdiction of the Superior Court, and, if sufficient grounds to establish a claim of aggrievement are not alleged, a motion to erase the appeal will be granted. See also Hendel's Investors Co. v. Z.B.A., 62 Conn.App. 263 (2001) (trial court's dismissal of appeal upheld where facts in complaint even if proven would not constitute aggrievement, id. page 269) also see Lewis v. Swan, 49 Conn.App. 669, 672, 675 (1998), Goldstien v. Zoning Comm., 159 Conn. 595 (1968), Henry v. Planning Zoning Comm., 24 Conn. L. Rptr. 345 (1999).
Interestingly the cases allude to the fact that an evidentiary hearing may be held after a motion to dismiss has been filed claiming a lack of standing because a plaintiff is not aggrieved, Bongiorno Supermarket v. Z.B.A., 266 Conn. 531, 535 (2003), Northeast Parking v. Planning Zoning Comm., 47 Conn.App. 284, 290 (1997), also see Post Limited Partnership v. Regional Council, 60 Conn.App. 21, 25 (2000).
Query how this fits in with FDIC Corp. v. Peabody N.E, Inc., 239 Conn. 93 (1990) which holds that once subject matter jurisdiction is raised the trial court must immediately act upon it ignoring any motion to amend by adding an allegation not set forth in the original complaint but which factually preexisted the filing of the original complaint?
At oral argument counsel for the plaintiff argued "that additional evidence (to support his position on aggrievement) is warranted . . . because the facts that were brought up during the public hearing are I guess indicative or can exhibit some form of unfair competition." But the transcript of that hearing was available and the complaint could have been prepared with reference to facts supporting the plaintiff's position on aggrievement. Even if an evidentiary hearing were to be considered appropriate the plaintiff does not seem to have met the ordinary prerequisites for holding one. In its brief opposing the motion the plaintiff reserved the right to amend or supplement its memorandum "pending the receipt of additional evidence" but no such evidence was offered. No affidavits were submitted, no offer of proof was made at oral argument to indicate what, if any, other evidence not alluded to in the complaint, could support the plaintiff's position on classic aggrievement. In fact the plaintiff concluded its memorandum by saying: "A broad reading of the allegations contained within the appeal indicate that the plaintiff has alleged and established aggrievement."
In any event the complaint at paragraph 13 does say that the plaintiff's business is in "close proximity" to the subject property and "it has a specific, personal and non-speculative economic or business interest which has been specially and injuriously affected by the Commission's decision." In paragraph 16 it is further alleged that the defendant Commission acted illegally and in abuse of its discretion in ways that support its illegal and unfair competition argument. In subparagraph (f) is claimed the defendant ignored evidence on the record "regarding the retail nature of the business to be conducted (by the applicant) on the property." Such evidence indicates that such activity on the property would be in violation of the applicable zoning laws and would have required denial of the application. The court has previously referred to the zoning regulations the plaintiff relies upon, they were quoted in the complaint and when read together with paragraphs 13 and 16 form the basis of an illegal competition complaint. Subparagraph (g) of paragraph 16 goes on to allege in conformity with the plaintiff's present position that the Commission "violated its own regulations in condoning the establishment of a business that was not appropriate for, and out of harmony with, the zoning district where it is to be permitted. Subparagraph (k) explicitly states that the defendant Commission's actions violated § 23.12 of its zoning regulations. This regulation is set forth in the complaint and states "further development of retail . . . uses in these districts will be inconsistent with their purpose and the purpose of the districts."
The above language does frame the illegal and unfair competition claim which forms the basis of the plaintiff's argument that it is classically aggrieved. And as here where the defendants' motion to dismiss "does not seek to introduce facts outside the record it admits all well pleaded facts, the complaint being construed most favorably to the plaintiff," Duguay v. Hopkins, 191 Conn. 222, 227 (1983), see also Shay v. Rossi, 253 Conn. 134, 140-41 (2000).
Under these circumstances it is difficult to see how an evidentiary hearing would have been able to present anything more helpful to the plaintiff. Besides given the way the complaint is framed and the plaintiff's brief is constructed, as will be discussed shortly, the court's ruling is based on a legal issue of regulatory interpretation not evidentiary issues to be resolved one way or another.
(C.)
The question remains as to how to analyze a classic aggrievement claim such as this based as it is on an allegation that a local agency's action was an exercise in creating illegal and unfair competition.
The allegations of this complaint do not support a claim of classic aggrievement. The general rule is that the fact that a plaintiff's business will suffer economically through increased competition because of the granting of a permit or special exception to operate a business to a prospective competitor does not provide the basis of a claim for aggrievement, Mott's Realty Corp. v. Town Planning Zoning Comm., 152 Conn. 535, 537 (1965); Gregorio v. ZBA, 155 Conn. 422, 426 (1967), Whitney Theater Co. v. Bd. of Zoning Appeals, 150 Conn. 285, 288 (1963), cf. Conn. St. Med. Society v. Conn. Bd. of Examiners in Podiatry, 203 Conn. 295, 301 (1987). The basis of this rule and why it is made so difficult to overcome is the notion that the public will be benefitted if it is offered as much choice as possible in the market place — competition is said to provide this choice at the lowest price. The general rule and the exception to it is set forth in State Bd. of Medical Examiners, supra at 203 Conn. page 302 and its reasoning applies to zoning cases:
It is a principle of common law that (o)ne who causes loss of business or occupation to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, though he (she, it) knows that the loss will result . . . These substantive principles have engendered correlative jurisdictional rules. Although an allegation merely of competition likely to result in lost revenues is ordinarily insufficient to confer standing, this court has frequently assumed jurisdiction as a matter of course over a claim of unfair or illegal competition.
See generally Vol. 9A of Connecticut Practice, Land Use Law and Practice, Fuller at § 32.5 Evidence of Aggrievement, pp. 120 et seq.
As noted the case sets forth the two-part test for establishing classic aggrievement. Here the plaintiff claims it will be subjected to economic harm (par. 13) because ft will be subjected to competition not authorized by town regulations (par. 16f, g, k). Thus the first prong of the Stauton test is met — the plaintiff has demonstrated a specific personal and legal interest in the subject matter of the defendant agency's action, as distinguished from a general interest such as is the concern of all the members of the community.
What the allegations of the complaint fail to do, however, is meet the requirements of the second prong as regards its unfair competition claim. That prong requires the plaintiff to demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law, see Hendel Investors Co., supra 62 Conn.App. at page 271.
Paraphrasing United Cable Television Services Corp. v. Dept. of Pub. Utility, 235 Conn. 334, 345 (1995), in considering whether a plaintiff's interest has been injuriously affected by the local agency's action in granting a special exception to a competitor a court must examine whether the injury complained of (increased competition) falls within the zone of interests sought to be protected by the regulatory provisions whose violation forms the legal basis of the complaint, see Assn. of Data Processing Service Org, Inc. v. Camp, 397 U.S. 150, 153 (1970), Hendel Investors Co. v. ZBA, supra at 62 Conn.App. 272, Northeast Parking v. Planning Zoning Comm., 47 Conn.App. 284, 288 et seq. (1997).
The court has previously quoted the zoning regulations relied on by the plaintiff and violation of which it is claimed has created the prospect of unfair and thus illegal competition. Nothing in these regulations explicitly or implicitly exhibits an interest in protecting individual competitors. The regulation for "General Industrial District #2" (23.12) speaks to the undesirability of "further development of retail . . . uses." Retail activity must not be a primary use, which the plaintiff seems to allege will be the result of the special exception being granted in this case, but the purpose for that as § 23.12 indicates is that these type of industrial zones . . . "are designed for occupancy on somewhat larger sites with more spacious setbacks, in order to assure a high quality of development within the District and an agreeable relationship to adjacent districts." There is no stated purpose to protect other competitors so the plaintiff fails to meet the zone of interest test, see analysis in Lewis v. Swain, 49 Conn.App. 669, 678 (1998) et seq., United Cable Television Services Inc., supra 235 Conn. at pp. 347 et seq. The regulations cited by the plaintiff do not indicate that the town in enacting them intended "to take competitive concerns into account," Post Limited Partnership v. Regional Council, 60 Conn.App. 21, 30 (2000).
The allegations made do not meet the test for aggrievement on the basis of prospective unfair competition. There is no common-law claim of unfair competition made, reference to the town regulations is all that has been relied upon in the complaint and plaintiff's brief to advance its claim. The other allegations of illegal activity by the defendant Commission set forth in paragraph 16 are speculative and conclusory.
The appeal is dismissed.
Corradino, J.