Opinion
No. X03 CV 03 0522911 S
April 6, 2005
MEMORANDUM OF DECISION
The plaintiff, Wayne C. Gerlt, filed this appeal from the February 25, 2003 decision by the defendant South Windsor Planning Zoning Commission ("commission") granting site plan approval to the defendant, Evergreen Walk, LLC ("Evergreen Walk"), to construct the Expo Design Center retail facility as one portion of an overall development taking place on the 232 acre plot of land owned by Evergreen Walk in South Windsor, Connecticut.
The Pavilions at Buckland Hills, LLC has intervened as a plaintiff in this matter. However, their involvement in this appeal is not pertinent to the court's present resolution of the defendant's motion to dismiss.
The plaintiff appeals pursuant to General Statutes § 8-8(b), alleging numerous violations of the General Statutes, local zoning regulations and procedural defects in the site application approval process. The plaintiff claims that he is a statutorily "aggrieved person," entitled to appeal under General Statutes § 8-8(a)(1), by virtue of his ownership of land within a radius of 100 feet of the land involved in the decision of the commission.
General Statutes § 8-8(b) provides, in relevant part: "any 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) defines an "aggrieved person" as: "a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." (Emphasis added.)
This appeal is one of several filed by the plaintiff directed to project plans for the Evergreen Walk development. Initially, Evergreen Walk submitted a general plan of development to the commission for approval of a comprehensive, nonbinding plan for the 232-acre plot of land. Subsequently, individual site plan applications for parcels of land within the overall development were filed with the commission, including the plan for the Expo Design Center.
Evergreen Walk initially moved to dismiss the plaintiff's appeal for lack of subject matter jurisdiction on the ground that the plaintiff was not statutorily aggrieved, since his property was not within a 100-foot radius of the proposed Expo Design Center site. Evergreen Walk text filed a supplemental motion to dismiss the plaintiff's appeal for lack of subject matter jurisdiction, arguing that the plaintiff failed to exhaust his administrative remedies by not appearing and raising his objections to the project at the administrative hearings on the Expo Design Center.
"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.) Borden v. Planning Zoning Commission, 58 Conn.App. 399, 405, 755 A.2d 224, cert. denied 954 Conn. 921, 759 A.2d 1023 (2000). "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002), see Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). "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." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy LLC v. Alves, 262 Conn. 480, 487, 815 A.2d 1188 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).
Evergreen Walk argues that the plaintiff is not an aggrieved party under General Statutes § 8-8(a), since the Expo Design Center site is not within a 100-foot radius of the property owned by the plaintiff. Indeed, the court heard testimony from a surveyor that the plaintiff's property, while within 100 feet of a portion of the overall Evergreen Walk development, is actually over 4,400 feet from the specific parcel of land where the Expo Design Center will be constructed. Evergreen Walk argues that it is the individual parcel of land, and not the overall plot owned by Evergreen Walk, that constitutes the "land involved in the decision of the board" under § 8-8(a) for determining aggrievement of a land owner.
The plaintiff argues that, for statutory aggrievement purposes, the court should look not at the distance between his property and the individual Expo Design Center parcel, but instead at the distance between his property and the entire Evergreen Walk development. Because the parties stipulated that the plaintiff's property is within a 100-foot radius of a portion of the overall development, the plaintiff contends that he qualifies as an aggrieved party under § 8-8(a).
Thus, the issue before the court with regard to aggrievement on Evergreen Walk's motion to dismiss is whether the phrase "land involved in the decision of the board" in § 8-8(a)(1) should be construed as the isolated Expo Design Center site or as the overall Evergreen Walk development. The Connecticut Supreme Court decided this very issue in Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989). There, the court reviewed the validity of the plaintiffs' claim of statutory aggrievement from a local commission's approval of a special exception to allow for excavation of a 3.8-acre parcel located deep within the defendant's 110-acre plot of land. Id., 664. While the plaintiffs in Caltabiano owned land within a radius of 100 feet of the defendant's 110-acre parcel, the 3.8-acre parcel where the excavation would occur was over 1,000 feet from the plaintiffs' property. Id., 664-65. The Supreme Court concluded that the term "land involved" in § 8-8(a) in an agency decision "concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency." Id., 663. This conclusion was based upon an examination of the legislative intent in granting certain persons statutory aggrievement, which the Caltabiano court described as "opening up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions." Id., 669-70. Emphasizing this legislative intent, the court stated: "[O]nly a bright line construction of § 8-8(a) can avoid the uncertainties of its application to various factual patterns involving zoning decisions affecting only a part of a larger piece of property." Id., 670. Since the plaintiff here owns land within 100 feet of the "complete tract of land owned by the applicant," Evergreen Walk, the court finds that the plaintiff is aggrieved. Id., 663.
At oral argument, counsel for Evergreen Walk cited Stauton v. Planning Zoning Commission, 271 Conn. 152, 856 A.2d 400 (2004), in support of its claim that the individual parcel of land where the Expo Design Center will be constructed should be treated separately from the overall plot of land owned by Evergreen Walk for determining whether aggrievement exists under § 8-8(a). The decision in Stauton is distinguishable in that it involved the Town of Madison's unique method of site specific special exception zoning by which the town would amend the regulations governing an entire zone, but apply the amended regulation only to the particular parcel of land specified. Id., 155 n. 5. In Stauton, the court concluded that when a zoning decision directly affects only a single property within a zone, the "land involved" in that decision, as used in § 8-8(a), does not include the entire zone in which the affected property is located. Id., 161. In this case, the plaintiff is not the owner of property within the same zone, but, as in Caltabiano, is the owner of property within 100 feet of Evergreen Walk's parcel.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment . . . It also relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review." (Citations omitted; internal quotation marks omitted:) Simko v. Ervin, 234 Conn. 498, 503-04, 661 A.2d 1018 (1995).
In determining whether an adequate administrative remedy exists, a court is required to look to the applicable municipal regulations. Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383, 603 A.2d 1168 (1992). An adequate administrative remedy is available "when it could provide the plaintiff with the judicial relief that it seeks and provide a mechanism for judicial review of the administrative decision." OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 426, 665 A.2d 1121 (1995).
The exhaustion doctrine usually arises in situations where a plaintiff has mounted some form of a collateral attack upon a zoning decision, or has failed to utilize a "next step" at the local level, such as an appeal to the local zoning board of appeals. Here, there is no dispute that the South Windsor zoning regulations do not provide for an appeal from a decision by the commission granting approval of a site plan application — there is no "next step" at the local level to challenge the commission's decision. Nevertheless, Evergreen Walk argues that by failing to appear before, or present any evidence in the hearings before the commission on the Expo Design Center site, the plaintiff, who otherwise qualifies as an aggrieved party under § 8-8(a), has failed to exhaust administrative remedies available to him. This argument is rooted in Evergreen Walk's contention that, had the plaintiff raised his objections to the Expo Design Center site plan at the hearings before the commission, he may have been able to receive a satisfactory disposition of his claims at the administrative level, thus making this appeal unnecessary.
At oral argument, counsel for Evergreen Walk cited Evans v. Plan and Zoning Commission, 73 Conn.App. 647, 808 A.2d 1151 (2002) in support of Evergreen Walk's claim that the plaintiff failed to exhaust his administrative remedies. In Evans, the Appellate Court held that a plaintiff is barred from raising issues on appeal that were not raised this issue during the administrative proceedings, stating: "`A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [commission].'" Id., 651, quoting Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992).
Evans addressed the issue of waiver and has no bearing on the plaintiff's right to appeal in this case. The Evans case does not contain even an implicit reference to the exhaustion doctrine. Indeed, the court in Evans went on to address the merits of the plaintiff's claim, indicating that the court did not consider the failure of the plaintiff to raise her claim in the administrative proceedings below to be a jurisdictional defect. See Evans v. Plan Zoning Commission, supra, 73 Conn.App. 651.
The court finds no basis in the case law or in the language of § 8-8 to impose an exhaustion requirement upon statutorily aggrieved persons under § 8-8 to appear at administrative hearings and raise potential objections to the application in order to preserve their right to appeal. Whereas the right to an appeal provided under the Uniform Administrative Procedure Act, General Statutes § 4-183, specifically requires a party to first exhaust all administrative remedies, there is no similar requirement under § 8-8.
General Statutes § 4-183(a) provides, in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
Under all the foregoing circumstances, the court finds that the plaintiff qualifies as a statutorily aggrieved person. Accordingly, the court has subject matter jurisdiction over the appeal. Evergreen Walk's motion to dismiss is hereby denied.
BY THE COURT
Peck, J.