Opinion
No. CV09 5010462S
October 19, 2011
MEMORANDUM OF DECISION
This action arises from the decision of the defendant, the Milford Planning Zoning Board (the board), approving an application for a special exception and site plan. On September 29, 2009, the defendant, Melissa Marter, filed an application with the board for a special exception and site plan to allow her to establish a dog day care center at the property located at 100 Gulf Street, Milford, Connecticut. The board conducted a public hearing on October 6, 2009. There was discussion regarding barking, sanitation and traffic conditions in the neighborhood. On October 20, 2009, after a public hearing on this application, the board voted 7-2 to approve the applications with modifications and conditions.
At all times relevant thereto, the plaintiff, Joseph A. Tuozzola, is the joint owner of real property known as 118 Gulf Street, Unit 24, Milford, Connecticut. On November 5, 2009, the plaintiff commenced this timely appeal, alleging that the board acted illegally, arbitrarily, unreasonably and in abuse of its discretion in approving the aforementioned applications. On June 21, 2010, Marter filed a motion to dismiss and a memorandum of law attached thereto on the ground that, inter alia, the plaintiff failed to plead classical aggrievement pursuant to General Statutes § 8-8(b). On July 20, 2010, the plaintiff filed a memorandum in opposition to the motion. On July 23, 2010, Marter filed a reply brief in support of the motion. On January 6, 2011, the board filed a memorandum stating its intent to incorporate Matter's motion to dismiss by reference.
Sherry Stewart and Lakshmana A. Pudipeddi were initially named plaintiffs in the zoning appeal, but they are no longer parties to this case. In this memorandum of decision, "the plaintiff" refers solely to Joseph A. Tuozzola.
Judge Dale W. Radcliffe entertained said motion to dismiss and ruled on June 21, 2010 as follows: "ORDER: Denied without prejudice for issue of aggrievement to be proved by Plaintiff at trial."
The plaintiff proceeded to his proof at trial on June 9, 2011.
"A motion to dismiss . . . 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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, `it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.'" Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Denny v. Tomei, 129 Conn.App. 544, 549, 21 A.3d 484 (2011).
The defendants argue that the plaintiff's appeal should be dismissed for lack of subject matter jurisdiction on the ground that, inter alia, the plaintiff has not established that he has been classically aggrieved. The plaintiff counters that he has properly alleged classical aggrievement.
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Two broad yet distinct categories of aggrievement exist, classical and statutory." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010). "[T]he party alleging aggrievement bears the burden of proving it . . . [B]ecause aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict." (Citation omitted; internal quotation marks omitted.) JZ, Inc., Dunkin Donuts v. Planning Zoning Commission, 119 Conn.App. 243, 247, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).
In the first paragraph of his complaint, the plaintiff alleges that he is the "owner of the real property known as 118 Gulf Street, Unit 24, Milford, Connecticut." In paragraph 8.f. of his appeal, the plaintiff specifically alleges the following:
f. The approval specifically failed to consider the detrimental effect that maintaining a `dog resort' would have on the quiet enjoyment of their property by the Plaintiffs with regard to noise and traffic."
Viewing the facts alleged in the light most favorable to the plaintiff and admitting all facts which are well pleaded, the plaintiff has not established that he is classically aggrieved. The plaintiff alleges in paragraph 7. that he was "aggrieved by the board's decision in so far as [he] has specific and personal interest in the board's decision and [is] materially affected by said decision." This statement, however, is not sufficient to set forth classical aggrievement. "[T]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Emphasis omitted; internal quotation marks omitted.) Wucik v. Planning Zoning Commission, 113 Conn.App. 502, 507, 967 A.2d 572 (2009). For example, in Hendel's Investors Co. v. Zoning Board of Appeals, CT Page 21528 62 Conn.App. 263, 274, 771 A.2d 182 (2001), the court held that the "conclusory statements contained in paragraph six of the plaintiff's complaint, i.e., the `[p]laintiff is aggrieved by the decision of the [d]efendant,' and `[t]he [p]laintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the [d]efendant,' are of little import to our analysis. Those conclusory statements, which purport to allege aggrievement, are insufficient because adequate factual allegations do not accompany them."
The plaintiff further alleges that he has been aggrieved by the board's decision because the board's action was illegal, arbitrary and capricious, and that the maintenance of a dog resort would have a detrimental effect on the quiet enjoyment of his property. He fails to allege, however, that he has a specific interest in the board's decision, as opposed to a general interest shared by all members of the community. "Courts in Connecticut have routinely denied standing to appellants who allege aggrievement based on general concerns that may be shared by everyone in the appellants' communities." Fifty Connecticut Avenue, LLC v. Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 10 6004978 (January 11, 2011, Tobin, J.); see Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 533, 833 A.2d 883 (2003) (supermarket owner not classically aggrieved by board's decision to grant permit to another supermarket because plaintiff's claim that an intersection near his property would become more congested failed to establish that he was specially and injuriously affected).
The plaintiff's testimony at the Planning and Zoning Board public hearing on October 6, 2009 was merely suggestive and general comments in nature. This testimony lacked substance.
Further, the plaintiff's testimony at the hearing on June 9, 2011 was speculative and lacked specificity and lacked any evidence to support such speculation that dog barking materially affected the peaceful enjoyment of his property.
The defendant's presentation at the Planning and Zoning Board public hearing on October 6, 2009 included testimony that any noise generated by dogs barking would be dampened and lessened by several factors which would include the following:
a. the building's housing is of substantial construction;
b. the dogs are individually kenneled at night with music;
c. Gulf Gardens Condominium is approximately 200 feet distant;
d. there is a large berm supporting railroad tracks which is higher than the subject premises;
e. there are also trees and shrubs to absorb noise.
Further, the Board's conditioned approval that the garage door leading to dogs' runs be closed from 6:00 p.m. to 9:00 a.m.
The court cannot conclude that the plaintiff was classically aggrieved.
Accordingly, the court lacks subject matter jurisdiction on the appeal.
For the foregoing reasons, the plaintiff's appeal is dismissed.