Opinion
No. FST CV 05 4004393
December 6, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendant, the Urban Redevelopment Commission of the city of Stamford (URC), has filed motion #116 to dismiss five of the six counts of a complaint brought by the plaintiffs, Maria Aposporos and Ellen Begitis, partners in a general partnership which owns "Curley's Diner" at 62 West Park Place, Stamford. This motion appeared on the law or motion short calendar of August 8, 2005 (col. 5; pos. 51).
The plaintiffs seek a declaratory judgment. In the first count of their complaint, the plaintiffs allege that, although their own property has not been taken by the URC, they have been personally and adversely effected by the proposed redevelopment project as set forth in a Land Disposition Agreement (LDA) between the URC and Park Square West, LLC (Park Square), the proposed developer of the urban renewal project in the area of Main Street and Washington Boulevard in downtown Stamford. In count two of the complaint, the plaintiffs claim an express easement or one by prescription over a right-of-way on adjacent property previously taken by the URC. It is alleged in count three that the defendants have maliciously obstructed the right-of-way they claim in count two by installing a fence around the sides and rear of the plaintiffs' property.
In the fourth count of the complaint, which is not the subject of this motion to dismiss, the plaintiffs allege that the URC has maliciously erected a fence with intent to "annoy or injure" the plaintiffs in their use of their land as prohibited by General Statutes § 52-570. The legal remedy described in § 52-570 has an equitable counterpart in § 52-480, which provides that "[a]n injunction may be granted against the malicious erection, by or with the consent of an owner . . . of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same." The plaintiffs' application for a temporary injunction ordering the removal of the fence was deferred until this ruling on the motion to dismiss and now may be reclaimed for the miscellaneous/special proceedings calendar.
Cases decided under the statutes have referred to four required elements. Those four elements are "[a] structure erected on the owner's land; a malicious erection of the structure; an impairment thereby of the value of adjacent land; [and] an intent by means of the structure to injure the adjacent owner in the enjoyment or disposition of his land." Whitlock v. Uhle, 75 Conn. 423, 426, 53 A. 891 (1903). In the present case, a fence clearly falls within the meaning of a "structure" under § 52-480. See DeCecco v. Beach, 174 Conn. 29, 32, 381 A.2d 543 (1977).
In the fifth and sixth counts, the plaintiffs allege that the construction of the fence around their property constitutes the malicious erection of a structure and a "nuisance."
Further background on this controversy is reported in Aposporos v. Urban Redevelopment Commission, 259 Conn. 563, 790 A.2d 1167 (2002), where the plaintiffs challenged the agency's proposed taking of their property by seeking permanent injunctive relief. That action, after an appeal to our Supreme Court, ultimately succeeded.
In Aposporos, an urban renewal plan was approved in March 1963. The plaintiffs' property, while contained in the area subject to the plan, was not acquired under the plan. On March 7, 1988, amendments to the 1963 plan, including the taking of the plaintiffs' property, were approved. The plaintiffs then sought, among other things, temporary and permanent injunctive relief to prevent the redevelopment commission from taking their property by appealing to our Supreme Court, claiming that the condemnation was invalid because the redevelopment commission did not make a renewed finding of blight when it amended the original plan. The Supreme Court held that a redevelopment agency may not make an initial finding of blight and rely on that finding indefinitely to amend and extend a redevelopment plan to respond to conditions that did not exist, or to accomplish objectives that were not contemplated, at the time that the original plan was adopted. "To do so would confer on redevelopment agencies an unrestricted and unreviewable power to condemn properties for purposes not authorized by the enabling statute and to convert redevelopment areas into their perpetual fiefdoms." (Citation omitted; internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, 85 Conn.App. 38, 55, 855 A.2d 1011 (2004).
After the URC was unable to obtain the Curly's Diner property, the agency condemned the surrounding area and erected a chain-link fence along the sides of the diner, about four or five feet high and one foot away from the sides of the building. The defendant also constructed a fence along the rear of the property, where the plaintiffs had maintained some parking spots. Thus, the only access to the diner now is from the sidewalk in front of the building.
The URC contends in its motion to dismiss that the plaintiffs lack standing to bring the five counts of the complaint that are the subject of its motion. A motion to dismiss is authorized by Practice Book § 10-31 to assert lack of subject matter jurisdiction. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). "If a party is found to lack standing, the court is without jurisdiction to determine the cause." (Citation omitted; internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742 (2005).
"[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "[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." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved." (Citation omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005).
Statutory Aggrievement
"In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief . . . The plaintiff must be within the zone of interests protected by the statute." (Citations omitted; internal quotation marks omitted.) St George v. Gordon, supra, 264 Conn. 545-46.
The plaintiffs did not cite any statute affording them the right to sue the URC when the defendant agency did not and cannot condemn their property. Hence, the plaintiffs are not statutorily aggrieved.
Classical Aggrievement
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." Eder Bros, Inc. v. Wine Merchants of Connecticut Inc., supra, 275 Conn. 369.
Although cloaked in various legal theories, this case is about access to the rear of the diner having been cut off by the URC's construction of a fence, albeit on the URC's own property, but so close to both sides of the diner that no one can get to the rear of the plaintiffs' property. The plaintiffs summarized the issue in this motion to dismiss succinctly and accurately. "This case is first and foremost about access rights." There are parking spaces for customers located in the rear and deliveries and removals occurred there in the past. Now all the customers and the providers have to access the diner directly from the street and over the front sidewalk. This may well be inconvenient and frustrating for the plaintiffs and their customers, but inconvenience does not equate to a specific, personal and legal interest in the activities of the URC redevelopment. Nor does the claim that the value of the diner property will be diminished by the URC project constitute classical aggrievement as defined above. Moreover, the remaining fourth count seeking to enjoin the continuing existence of the fence may grant the practical relief that the plaintiffs seek.
The plaintiffs also contend that they have a specific, personal and legal interest in the URC's activities because of an easement they claim to have over the adjacent URC property. Counts two and three of the complaint allege the existence of an easement over the defendant URC's property so that the plaintiffs can have access to the rear of their property which is now impossible because of the fence along the side of the diner.
In 1982, however, the URC condemned property adjacent to the subject premises, which included the right-of-way now asserted by the plaintiffs. An appeal to the Superior Court, Judge Wm. Tierney, resulted in an award in 1988 increased to $191,000, which the plaintiffs accepted. The court described the right-of-way taken and paid for as fourteen feet wide running from the street to the rear and twenty feet across the rear of the property. The plaintiffs elected to forgo further appeals in favor of accepting the URC's money in exchange for their easement. This current claim of an easement represents an attempt to attack collaterally the judgment of the court that accepted the sale of their property, including their easement, to the URC.
In addition, the plaintiffs cannot claim an express easement by way of a grant. They have continued access to their diner, which is still functioning, despite the presence of the surrounding fence, so there is no basis for an easement by necessity. The plaintiffs have not cited authority for their claim of an easement by prescription or adverse possession over public lands, that is, the adjacent property owned by the defendant URC. To the contrary, it is well established that title to realty held by the state or a municipality for a public use cannot be acquired by adverse possession. Deer Island Association v. Trolle, 181 Conn. 201, 202, 435 A.2d 10 (1980).
Taxpayer Status
The plaintiffs also claim that they have standing to pursue this appeal by virtue of the fact that they are taxpayers of the municipality. This claim, however, does not automatically confer standing to challenge alleged improprieties in the conduct of the defendant municipality. "A plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d her] to suffer some pecuniary or other great injury . . . It is not enough for the plaintiff to show that her tax dollars have contributed to the challenged project . . . [T]he plaintiff must prove that the project has directly or indirectly increased her taxes . . . or, in some other fashion, caused her irreparable injury in her capacity as a taxpayer . . . [B]ecause standing is a practical concept, common sense suggests that a taxpayer who challenges a part of a particular governmental program must demonstrate his or her injury in the entire fiscal context of that program, taking into account both the burdens and benefits of the program, and not just by demonstrating that the presumably burdensome part of the program itself, divorced from the larger program of which it is a part, causes injury." (Citations omitted; internal quotation marks omitted.) Seymour v. Region One Board of Education, supra, 274 Conn. 103.
There is no basis in this complaint for a claim of standing predicated on taxpayer status. The plaintiff taxpayers cannot contend that the redevelopment project adjacent to their property will have an adverse impact on their tax burden.
Therefore, the defendant's motion to dismiss counts one, two, three, five and six of the plaintiffs' complaint is granted.