Opinion
UWYCV166031778S
07-27-2017
Catherine Brunnock v. City Plan Commission of Waterbury et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #S 112 AND 114
Barbara Brazzel-Massaro, J.
I. BACKGROUND
The plaintiff, Catherine Brunnock, initiated this administrative appeal against the defendants, the City Plan Commission of Waterbury (commission), the city of Waterbury and 84 Vistas, LLC (84 Vistas) on August 2, 2016. The plaintiff filed her complaint on August 19, 2016, and it alleges the following facts. The plaintiff owns real estate in Waterbury located at the northeast of Saddle Rock Road, and is northerly adjacent to 25 Split Rock Drive. The city of Waterbury applied to the commission for the re-subdivision of a city owned property. Lot 1 " Reidville Industrial Park" (Lot 1), requesting that the open space buffer on the property be modified. To replace this buffer, the city of Waterbury, pursuant to General Statutes § 7-131n, proposed that an open space buffer would be created around the adjacent property owned by 84 Vistas. After holding a public hearing on July 13, 2016, the commission made the following decisions: (1) it approved the re-subdivision of Lot 1 modifying the open space buffer on the property; (2) it recommended that the city accept an easement around 84 Vistas' property to replace the open space buffer from Lot 1; and (3) it recommended that the city provide an easement to 84 Vistas across Lot 1. Thereafter, the plaintiff initiated this appeal. The plaintiff claims aggrievement by these decisions as her property is immediately adjacent to the parcel owned by 84 Vistas. The plaintiff argues, inter alia, that the commission acted arbitrarily, illegally and in abuse of their discretion in making these decisions.
On February 28, 2017, 84 Vistas moved to partially dismiss the plaintiff's appeal on the basis that she is not aggrieved by the commission's approval of the re-subdivision of Lot 1 or by the commission's recommendation of an easement across Lot 1. Furthermore, they argue that said recommendation was not a final decision and hence was not ripe for appeal. On March 1, 2017, the city of Waterbury moved to dismiss on the same grounds. The plaintiff filed her memorandum in opposition on March 22, 2017, conceding that the commission's recommendation of an easement to 84 Vistas across Lot 1 was not a final appealable decision. After a hearing on April 3, 2017, the court requested that the parties provide briefing and further argument pertaining to the applicability of General Statutes § § 7-131n and 8-24 to these proceedings. 84 Vistas filed a supplemental memorandum on April 20, 2017. The city of Waterbury filed their supplemental memorandum of law in support on April 21, 2017. In their supplemental memoranda the defendants move to dismiss the remainder of the plaintiff's appeal, arguing that the commission's recommendation to accept an easement providing the open space buffer around 84 Vistas' property was not a final decision and therefore was also not ripe for appeal. The plaintiff filed her supplemental memorandum in opposition on April 21, 2017. The matter was heard at short calendar on April 24, 2017.
II. DISCUSSION
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter . . ." Practice Book § 10-30(a). " 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Pursuant to Practice Book Section 10-30, a motion to dismiss is used to assert: " (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process and (4) insufficiency of service of process." " [A] motion to dismiss admits all facts well pleaded and undisputed facts." May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009).
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegation . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
The defendants argue that the plaintiff's appeal should be dismissed in its entirety. The defendants first argue that the commission's recommendations to accept an easement on 84 Vistas' property and grant an easement across Lot 1, are not final decisions, and thus do not provide a basis for appeal. With respect to the commission's approval of the re-subdivision of Lot 1, the defendants argue that the plaintiff is neither statutorily nor classically aggrieved; the plaintiff's land does not abut Lot 1, nor does she allege a basis for classical aggrievement. Consequently, the defendants argue that the plaintiff's appeal should be dismissed in its entirety. In response, the plaintiff argues that the decisions regarding the re-subdivision of Lot 1 and the recommendation of an easement around 84 Vistas' property are intertwined; consequently, these decisions operate to provide the plaintiff with statutory aggrievement under § 8-8(a)(1), as her land abuts that of 84 Vistas. Furthermore, the plaintiff argues that she is classically aggrieved as the proposed new buffer zone on 84 Vistas' property would cut off a potential extension of Saddle Rock Road effectively land locking her parcel. The plaintiff concedes that the recommendation that the city grant an easement to 84 Vistas across Lot 1 was not a final appealable decision.
A. RIPENESS
The defendants move to dismiss the plaintiff's appeal with respect to the commission's decisions regarding the recommendation of an easement across Lot 1 and accept an easement on 84 Vistas' property, on the basis that the decisions are not final, essentially asserting that the appeal is not ripe. " [R]ipeness is a sine qua of justiciability . . . An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction . . . If it becomes apparent to the court that such jurisdiction is lacking, the [cause of action] must be dismissed." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009). A trial court properly grants a motion to dismiss if it determines that the cause of action is unripe for adjudication." Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008). " [T]here is no appeal from the action of a planning board unless it is an act binding without further action by a zoning commission or other municipal agency." East Side Civic Assn. v. Planning and Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 (1971); see also Porter v. Planning & Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-4009865-S, (December 26, 2007, Karazin, J.) (motion to dismiss granted as preliminary decision of planning commission was not appealable). Civie v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0072800-S (November 2, 2001, Alander, J.) [30 Conn.L.Rptr. 568, ] (decision at issue was not final and therefore not appealable when it was merely a recommendation that was subsequently voted on by another municipal body).
" The considerations underlying the requirement of finality of an agency decision as a prerequisite to judicial review are akin to those involved in the ripeness doctrine as applied to administrative rulings. Its basic rationale is to prevent the courts, through avoidance of premature adjudication from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." State v. State Employees' Review Board, 231 Conn. 391, 402, 650 A.2d 158 (1994). In the present case, the defendants move to dismiss the plaintiff's appeal as it pertains to the commission's decisions recommending an easement across Lot 1 to 84 Vistas, as well as recommending the acceptance of an easement around 84 Vistas' property, on the basis that these decisions are not final. The plaintiff concedes that the granting of the easement to 84 Vistas was not a final decision in her March 22, 2017 memorandum in opposition. The court agrees. The recommendation of an easement on Lot 1 was merely a preliminary recommendation by the commission, consequently it is not ripe for appeal. See Civie v. Planning & Zoning Commission, supra, Docket no. CV-01-0072800S (decision not final when mere recommendation; hence not appealable). Thus the motion to dismiss is granted as to the plaintiff's appeal challenging the commission's recommendation of an easement across Lot 1.
The commission's recommendation that the city accept an easement providing a buffer zone round 84 Vistas' property is also not a final decision. The evidence submitted by the defendants and in the return of record in this appeal supports this conclusion. Per the transcript of the vote of the commission, item 9 in the return of record, at the hearing on July 13, 2016, the commission explicitly recommended the granting of an easement around 84 Vistas' property. Furthermore, Exhibit A attached to the city of Waterbury's supplemental memorandum is an uncontested letter from the commission to the Board of Aldermen requesting that, among other things, the issue of accepting the open space buffer around 84 Vistas' property be placed on their agenda, and that the Commission recommends its approval. Nothing in the zoning regulations or in the return of record indicates that the commission has the power to approve an easement; rather, it is the power of the municipal authority of Waterbury to decide such matters. Indeed § 8-24 provides in relevant part: " No municipal agency or legislative body shall . . . (2) locate, relocate substantially improve, acquire land for, abandon, sell or lease any airport, park, playground, school or other municipality owned property or public building . . . until the proposal to take such action has been referred to the commission for a report." (Emphasis added.) It is ultimately a municipal agency or legislative body that makes the final decision to take or relocate land. As the commission's recommendation of an easement around 84 Vistas' property was merely a preliminary decision by a planning commission before the final decision was made by the Board of Alderman, it is not a proper basis for appeal. See East Side Civic Assn. v. Planning & Zoning Commission supra, 161 Conn. at 560. Consequently the motion to dismiss is granted as to the plaintiff's appeal regarding the recommendation of an easement around 84 Vistas' property.
B. STANDING
The defendants also argue that the plaintiff lacks standing to bring this appeal as she is neither statutorily nor classically aggrieved. " [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). " If . . . the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnotes omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). " It is . . . fundamental, that in order to have standing to bring an administrative appeal, a person must be aggrieved." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). " [P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). " In order to prevail on the issue of aggrievement, [t]he trial court must be satisfied, first, that the plaintiff alleges facts which, if proven would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those allegations." (Internal quotations marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. at 542-43.
" [T]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement is insufficient ." (Emphasis in original.) Wucik v. Planning & Zoning Commission, 113 Conn.App. 502, 507, 967 A.2d 572 (2009). For example, the court in Hendel's Investors Co. v. Zoning Board of Appeals, 62 Conn.App. 263, 274, 771 A.2d 182 (2001), 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." See also Tuozzola v. Planning & Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-0905010462-S, (October 19, 2011, Moran, J.T.R.) (aggrievement was not sufficiently alleged where assertion was simply that board failed to consider detrimental effect on plaintiff's property); Flannigan v. Planning & Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-4006317-S, (October 1, 2008, Ripley, J.T.R.) (conclusory language simply stating that plaintiff was aggrieved was not sufficient to plead aggrievement). " Two broad yet distinct categories of aggrievement exist, classical and statutory." Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001). " 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." Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).
General Statutes § 8-8 (b) provides in relevant part: " [A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(a)(1) provides in relevant part: " In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeal, 'aggrieved person' includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." The phrase " land involved in the decision of the board" has been interpreted to include the complete tract of land at issue owned by the applicant. See Stauton v. Planning & Zoning Commission, supra, 271 Conn. 159.
Classical aggrievement on the other hand has its own specific requirements that must be met. " 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] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." Handsome Inc. v. Planning & Zoning Commissions, 317 Conn. 515, 526, 119 A.3d 541 (2015).
In the present case, the plaintiff has failed to plead both statutory and classical aggrievement with respect to the decision of the commission approving the re-subdivision of Lot 1. The only language related to aggrievement in the plaintiff's complaint is found in paragraph eleven, which provides: " [T]he Plaintiff is aggrieved by the decision of the Defendant Commission re-subdivision application as well as the reconfiguration and replacement substitution of the open space/buffer and the recommendation of said easement in that her property is immediately adjacent to the parcel owned by Defendant 84 Vistas, LLC." This language indicates that the plaintiff is seeking to invoke statutory aggrievement under § 8-8(a)(1). The plaintiff, however, is not statutorily aggrieved by this decision as she does not fall within the purview of an " aggrieved Person" under the statute. Per the representations of the parties, and the re-subdivision map in the return of record, it is undisputed that the property of the plaintiff does no abut, nor is it within one hundred feet of Lot 1. See Stauton v. Planning & Zoning Commission, supra, 271 Conn. 159. Consequently, the plaintiff is not statutorily aggrieved by this decision. To have standing then, the plaintiff must show that she is classically aggrieved.
The plaintiff has not pleaded facts demonstrating that she is classically aggrieved in her complaint. The plaintiff has pleaded nothing as to how this decision operates to affect her specifically or how it injuriously affects her interest. See Handsome Inc. v. Planning & Zoning Commission, supra, 317 Conn. at 526. The plaintiff in her complaint has only provided a conclusory statement asserting that she is aggrieved, which is insufficient as a matter of law. See Wucik v. Planning & Zoning Commission supra, 113 Conn.App. 507. Furthermore, there are no factual allegations accompanying this assertion. See Hendel's Investors Co. v. Zoning Board of Appeals, supra, 62 Conn.App. 263. Accordingly, the plaintiff has failed to plead classical aggrievement as to the commission's decision approving the re-subdivision of Lot 1.
The plaintiff, however, argues for the first time in her memoranda in opposition that she is both statutorily and classically aggrieved with respect to the re-subdivision of Lot 1. The plaintiff argues that the approval of the re-subdivision of Lot 1 and the recommendation of an easement on 84 Vistas property' are related and intertwined, which operate to provide the plaintiff with statutory and classical aggrievement. These arguments are unavailing. With respect to statutory aggrievement, the plaintiff argues that the replacement of the buffer zone on Lot 1 was necessary pursuant to § 7-131n as land was being taken that was formerly used for open space purposes; consequently a new buffer zone was necessary. The plaintiff argues that this operates to intertwine the decisions as the easement around 84 Vistas' property providing the new buffer zone was necessary following the approval of the re-subdivision of Lot 1. Consequently, the plaintiff argues that § 8-8(a)(1) confers statutory aggrievement as her property is within 100 feet of land involved in the board's decision. Per the parties' representation and the re-subdivision map in the return of record, the plaintiff's land does indeed abut the property of 84 Vistas. Even if these decisions are intertwined, however, the plaintiff is not aggrieved. The decision of the planning commission was simply a recommendation. A mere recommendation is not a final decision, and cannot serve as a basis for aggrievement as set forth in Part A of this memorandum. Therefore, the plaintiff is not statutorily aggrieved.
Section 7-131n provides in relevant part: " If any municipality takes any land, for highway or other purposes, which land was purchased for park or other recreational open space purposes . . . or which had been dedicated for such purposes, such municipality shall provide comparable replacement land . . . provided before such municipality takes such land . . . it shall hold a public hearing . . . At such public hearing . . . the municipality shall set forth the description of the land proposed to be taken . . . and the description of the replacement land to be provided."
For purposes of classical aggrievement, even assuming that the re-subdivision and proposed buffer zone are intertwined, and that the recommendation regarding the buffer zone had been a final decision, the plaintiff is not classically aggrieved. The plaintiff points to the re-subdivision map found in the return of record, arguing that the proposed buffer zone will prevent the extension of Saddle Rock Road to her northern parcel. Per the re-subdivision map, however, Saddle Rock Road does not currently extend to the plaintiff's land making this " injury" entirely speculative. The land in which the buffer zone is to exist is entirely within 84 Vistas' property. An extension of the road, therefore, would require a taking of a portion of 84 Vistas' land, but this is not necessarily prohibited by the newly established buffer zone. Consequently, the plaintiff's injury is entirely speculative, and the plaintiff is not classically aggrieved. Therefore, the defendants' motion to dismiss is granted.
III. CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is granted.