Opinion
No. CV 06 4012873S
November 5, 2007
RULING ON MOTION TO DISMISS
This is an affordable housing case. The plaintiffs have appealed under General Statutes § 8-30g(f) from an October 4, 2006 decision of the Planning and Zoning Commission of the Town of East Hampton (the commission) approving the creation of a Housing Opportunity Development zone (HOD zone) in town. The plaintiffs claim that the commission, in establishing the HOD zone, enacted illegal restrictions that affect the development of affordable housing in the HOD zone. The commission has moved to dismiss for lack of aggrievement.
In their amended complaint, the plaintiffs allege in Count One, paragraph 21, that they submitted a modified application for a HOD zone on July 21, 2006. According to paragraph 25 of the amended complaint the commission approved the HOD zone on October 4, 2006. The plaintiffs object, however, to the restrictions attached to the HOD zone. Paragraph 27 sets forth a complete list, among them are that the "decision to impose standards specifically related to the definition of developable land, units per acre of developable land (including a limitation of four units per building) and road construction standards over the plaintiffs' objections create restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable housing units."
Count Two of the amended complaint is an equal protection challenge to the commission's decision. In paragraph 26 it is alleged that certain restrictions of the HOD district are not imposed on "like-situated" builders and developers in town.
In an affidavit of October 12, 2007, submitted by the plaintiffs in opposition to the commission's motion to dismiss, Wayne Rand, a manager for the plaintiffs, deposed in relevant part as follows:
It is appropriate on a motion to dismiss to consider "any record that accompanies the motion, including supporting affidavits that contain undisputed facts." Russell v. Yale University, 54 Conn.App. 573, 577 (1999). "The facts, which were presented to the trial court in the complaint and in affidavits and exhibits submitted in conjunction with the motion to dismiss, are not disputed." Connecticut Business Industry Ass'n., Inc. v. Commission on Hospitals Health Care, 214 Conn. 726, 728 (1990). A plaintiff opposing a motion to dismiss may submit an affidavit setting forth facts not of record. P.B. § 25-13(b); Garden Mutual Benefit Association v. Levy, 37 Conn.Sup. 790, 791-92 (1981); Shay v. Rossi, 253 Conn. 134, 141 (2000); Fennelly v. Norton, 103 Conn.App. 125, 135 (2007). Where, as here, the party moving to dismiss has not disputed the opposing affidavit, the court does not conduct an evidentiary hearing in conjunction with the motion to dismiss. Levy at 791.
8. The proposal for a text amendment [HOD zone] was tied to a rezone petition for the Housing Opportunity Development . . . zone for property owned [by the plaintiffs];
9. Both the text amendment [HOD zone] and the zone change to change the designation of the subject property from R-3 to HOD were processed through [the commission] based upon the plaintiffs' direction;
10. [The commission] approved, with offending changes, the text amendment [HOD zone] and denied the rezone petition;
11. At the public hearing on the text amendment [HOD zone] I, and John Cellino, at my direction, testified that certain changes suggested by the Commission would adversely affect our proposed affordable housing development.
The commission's motion to dismiss is based upon the failure of the plaintiffs to allege aggrievement in the amended complaint. The plaintiffs must not only prove aggrievement, they must adequately plead it as well. Beckish v. Manafort, 175 Conn. 415, 419 (1978); Bakelaar v. West Haven, 193 Conn. 59, 65 (1984); Mutual Housing Association v. Town of Trumbull, Superior Court, judicial district of New Britain, Dkt. No. 0492254 (August 24, 1999, Koletsky, J.) (affordable housing). As the court stated in Cole v. Planning Zoning Commission, 30 Conn.App. 511, 515 (1993): "Both pleading and proof of aggrievement are a prerequisite to a trial court's jurisdiction over the subject matter of the plaintiff's appeal."
The issue of aggrievement may be raised on a motion to dismiss under which the court is required to assess the legal sufficiency of the allegations of aggrievement. Hendel's Investors Company v. Zoning Board of Appeals, 62 Conn.App. 263 (2001); Wucik v. Planning and Zoning Commission, Superior Court, judicial district of New London, Dkt. No. 05-4003359 (May 22, 2007, Purtill, J.) [ 43 Conn. L. Rptr. 713] (appeal dismissed due to inadequate allegations of aggrievement).
Then judge Borden in Ribicoff v. Division of Public Utility Control, 38 Conn.Sup. 24, 27 (1980), aff'd per curiam, 187 Conn. 247 (1982) set forth the trial court's role in assessing the allegations of aggrievement: "The court must take the challenged factual allegations and the facts necessarily implied therefrom, construed most favorably to the pleaded as true . . . The pleading is tested by the facts provable under it, but unsupported conclusions of law are not admitted."
The court in Hutchings v. State Traffic Commission, Superior Court, judicial district of Waterbury, Dkt. No. X01 CV 990160453S (September 22, 2000, Hodgson, J.), 28 Conn. L. Rptr. 208, also discusses the court's function at the pleading stage: "The scope of the [defendant's] challenge to the plaintiffs' standing is limited in the context of a motion to dismiss to the adequacy of their pleading of aggrievement, and the court has not therefore conducted an evidentiary hearing concerning proof of those factual allegations concerning the plaintiffs' interests and injury to those interests. Presentation of evidence to establish aggrievement would follow if this court found that the plaintiffs had sufficiently alleged facts concerning the interests that are affected by the challenged administrative action."
At this stage of the proceedings, in looking to see if the plaintiffs have adequately alleged aggrievement, the court must also consider the well-accepted rule that aggrievement "requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . [aggrievement] by allegations of injury . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538 (2006).
The basis of the commission's motion to dismiss is that the allegations of Count One of the amended complaint are merely that the commission approved an HOD zone with illegal restrictions. According to the commission, this HOD zone is a floating zone to which the rule of Sheridan v. Planning Board, 159 Conn. 1, 12 (1969) applies: "[A]s a matter of law, there can be no aggrievement when the zoning regulations of a municipality are amended in such a way that no particular area or property is affected." The plaintiffs, according to the commission, might only challenge the commission's decision on the HOD zone if and when specific decisions regarding a property are taken in the HOD zone, citing Schwartz v. Town Plan Zoning Commission, 168 Conn. 20 (1975).
On the other hand, aggrievement may be obtained through statutory allowance. Missionary Society of Connecticut v. Board of Pardons and Paroles, 278 Conn. 197, 202 (2006), quoting Stauton v. Planning Zoning Commission, 271 Conn. 152, 157-58 (2004): "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."
Under the affordable housing statute, § 8-30g(f), "Any person whose affordable housing application is denied or is approved with restrictions which have a substantial impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section." Section 8-30g(a)(2) defines "Affordable housing application" to mean "any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing." Section 8-30g(a)(1) defines "Affordable housing development" to mean "a proposed housing development which is (A) assisted housing, or (B) a set-aside development."
The allegations of the amended complaint, as indicated above, indicate that the plaintiffs asked for the creation of an HOD zone and the commission acted to create the zone with unacceptable conditions. The affidavit of Rand goes further, however, indicating that at the same time as the plaintiffs moved for creation of what is a floating zone, they also unsuccessfully moved for a zoning change of their property in the newly-created HOD zone.
These allegations, together with the Rand affidavit, are sufficient to meet the requirement that the plaintiffs plead aggrievement. They have met the statutory requirement of § 8-30g(f) that their affordable housing application was approved with restrictions and that, under § 8-30g(a)(2), their affordable housing application was made in connection with an affordable housing development. With the affidavit supplementing the allegations of Count One, the claims are similar to those found adequate in West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508 (1994) ("we conclude that the legislature intended the statute's appeals procedure to apply to the defendant's legislative decision to grant or deny a zone change").
The finding that the plaintiffs have satisfied their pleading requirements such that the motion to dismiss should be denied does not resolve the issue of whether they will meet their burden of proof at the hearing on the merits in this case. Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 701 (2001). At oral argument on the motion to dismiss the commission's attorney argued that the zoning change had been resolved and only the HOD zone restrictions remain. This issue and others involving proof of aggrievement cannot be taken up in this motion, but may be raised in the context of the ultimate hearing. The motion to dismiss is therefore denied.
With regard to Count Two, the equal protection claim, the commission has not raised an aggrievement issue. See City Recycling, Inc. v. State, 257 Conn. 429, 454 (2001) ("There is no similar doctrine requiring a plaintiff to show that it clearly was entitled to a protectable property interest in order to trigger the federal or state equal protection guarantees") (emphasis in original).
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