Opinion
No. CV 04-0084630 S
February 3, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS ( #104)
INTRODUCTION
The Plaintiffs, The Stop Shop Supermarket Company (Stop Shop), CEVernon, LLC and CEVernon II, LLC, filed an administrative appeal on June 10, 2004 naming as Defendants, the Zoning Board of Appeals of the Town of Vernon (ZBA), Javit Asset Partners, LP (Javit) and Price Chopper Supermarkets (Price Chopper). In their complaint, the Plaintiffs allege the following facts. CEVernon, LLC and CEVernon II, LLC own the shopping plaza at 10 Pitkin Road in Vernon, where Stop Shop is currently a tenant. The Defendant ZBA is the municipal entity with jurisdiction to hear appeals from a decision of the Zoning Enforcement Officer of Vernon (ZEO), pursuant to General Statutes § 8-6. The Defendant Javit owns Tri-City Plaza shopping center at 35 Talcottville Road, Vernon, Connecticut. In December 2003, the Plaintiffs learned that Javit was seeking approval from Vernon to permit renovations to Tri-City Plaza so that Price Chopper could occupy and operate a store there. On January 14, 2004, the Plaintiffs requested a copy of the building permit application with respect to Tri-City Plaza from the ZEO pursuant to Connecticut's Freedom of Information Act. A second request was made on March 1, 2004. On March 22, 2004, Javit and Price Chopper submitted a building permit application to the ZEO, which included an application for a certificate of zoning compliance. On the same day, the ZEO issued a building permit and certificate of zoning compliance to the Defendants, without any notice to the Plaintiffs. On March 24, 2004, the Plaintiffs inquired of a member of the ZEO's staff as to whether Price Chopper had submitted its application. The Plaintiffs were told that Price Chopper had filed the applications, but that no permit or certificate had been issued. On March 25, 2004, pursuant to General Statutes § 22a-19, the Plaintiffs filed certified petitions with the ZEO to intervene in the application for the zoning compliance certificate. On March 26, 2004, the Plaintiffs discovered that the certificate had been issued. On April 1, 2004, the Plaintiffs appealed the ZEO's decision to the ZBA and on May 19, 2004, a public hearing was held before the ZBA. The hearing was closed on the same day and by unanimous vote, the ZBA denied the appeal on the ground that the Plaintiffs lacked standing to appeal the ZEO's decision. The ZBA reasoned that General Statutes § 22a-19 does not confer standing on the Plaintiffs to appeal the ZEO's decision to the ZBA because their petitions were filed after the certificate was issued. As a result the ZBA did not address the merits of the appeal.
General Statutes § 8-6 states: "Powers and duties of board of appeals: (a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . ."
General Statutes § 22a-19 provides: "Administrative proceedings. (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting impairing or destroying the public trust in the air, water or other natural resources of the state. (b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare."
The administrative record, as filed with the court, provides additional facts relevant to the Motion to Dismiss. It indicates that on November 20, 2003 the Building Official, Town Planner and Town Engineer of the Town of Vernon advised Javit that they had reviewed the proposed modifications of the site plan for the proposed Price Chopper Supermarket at Tri-City Plaza and considered them "to be a `minor modification' of the site plan that will not adversely effect public health or safety and hereby grant administrative approval of the minor modification of the site plan of development per Zoning Regulations Section 14.1.1.2 and consider the proposed relocation of the supermarket use to be a `minor modification' of the special permit [PZ-88-13] per Zoning Regulations Section 17.3.2.2." Section 14.1.1.2 of the regulations provides that "[n]ew construction, changes in or on a site, or changes of the exterior of a structure(s), which in the opinion of the Town Building Official, Town Engineer, and Town Planner, will not adversely affect the public health or safety, may be designated as `Minor Modifications' that do not require a detailed site plan." If a detailed site plan is required, pursuant to Section 14.1.1.1 of the regulations, approval of the PZC is required. Section 17.3.2.2 provides that: "Special Permit Modifications, which in the opinion of the Building Inspector, Town Engineer and the Town Planner are of such a minor nature that the public health and safety will not be adversely affected, are exempt from obtaining Commission approval."
By application dated February 27, 2004, a building permit was sought for "renovation to the existing Ames space at the Tri-City Plaza for a Price Chopper Supermarket per attached plans." On March 22, 2004, the Town Building Official/Zoning Enforcement Officer granted a building permit and certificate of zoning compliance to Price Chopper Supermarkets for interior renovations at 35 Talcottville Road.
The Plaintiffs allege that they have standing to appeal the ZBA's decision denying their appeal of the ZEO's decision because they complied with the requirements of General Statutes § 22a-19. The Plaintiffs further allege that the ZBA's decision to deny the appeal is "illegal, arbitrary, and capricious and constitutes an abuse of its discretion" for a number of reasons.
The Defendants have filed a motion to dismiss the Plaintiffs' appeal claiming that the Plaintiffs are not aggrieved and that they lack standing to appeal under General Statutes § 22a-19 because: (1) the issuance of a building permit and zoning certificate are not a "proceeding" into which a party may intervene; (2) the permits had been issued at the time the intervention petition was filed; and (3) the petition to intervene was filed with the PZC and neither the building permit nor the certificate of zoning compliance was pending there.
The court agrees with the Defendants that the application and issuance of a zoning compliance certificate is not a proceeding and, therefore, the Plaintiffs have no standing to appeal the ZBA's decision denying them intervenor status.
DISCUSSION
"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, 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.) Berlin Batting Cages v. Planning Zoning Commission, 76 Conn.App. 199, 203, 821 A.2d 269 (2003). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . A determination regarding a trial court's subject matter jurisdiction is a question of law . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 165, 852 A.2d 826 (2004).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). "[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).
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits." (Citations omitted; internal quotation marks omitted.) Russell v. Yale University 54 Conn.App. 573, 577, 737 A.2d 941 (1999).
The Plaintiffs do not claim that they are statutorily or classically aggrieved by the ZBA's decision. A person who is aggrieved by a decision of a zoning enforcement officer may appeal to the ZBA pursuant to General Statutes §§ 8-6 and 8-7. Instead they claim that they have standing to appeal the ZEO's decision, and that of the ZBA, pursuant to General Statutes § 22a-19. That statute provides that any legal entity may intervene as a party "[i]n any administrative, licensing or other proceeding." The Defendants argue that the Plaintiffs lack standing because there was no "proceeding" within the meaning of General Statutes § 22a-19 in which the Plaintiffs could have intervened. As the Plaintiffs note in their Memorandum of Law in Opposition to the Motion to Dismiss, "[t]he issue is whether Section 22a-19 of the General Statutes, the intervention provision in the Connecticut Environmental Protection Act, allows a party to intervene in the decision of a local zoning enforcement officer (`ZEO') to issue a certificate of zoning compliance."
"[Section] 22a-19 allows intervention in already existing administrative proceedings." Hyllen-Davey v. Planning Zoning Commission, 57 Conn.App. 589, 594, 749 A.2d 682, cert. denied, 253 Conn. 926, 745 A.2d 796 (2000). One Connecticut Superior Court decision has held that if a matter is a "proceeding," then a party has the right to appeal a decision denying that party intervenor status, if there was no "proceeding," however, the party does not have the right to appeal such a decision. See CT Page 2024 Cohen v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0191833 (March 27, 2003, Lewis, J.T.R.). In Cohen, the court emphasized that "[w]hat is directly at issue here is whether such a matter constitutes a `proceeding' . . . under General Statutes § 22a-19, for if it does not, then the [plaintiffs] had no right to intervene and, therefore have no right to appeal here. If the matter was a `proceeding,' then the [plaintiffs] have the right to appeal the RTM's decision to deny them intervenor status." Id. Therefore, in the present case, the court must first determine whether the issuance of the zoning compliance certificate constituted a "proceeding."
"When interpreting a statute, courts should accord a statutory enactment its plain meaning. Moreover, the meaning of statutory language must be determined from a reading of the statute as a whole . . . We may not, by construction, read a provision into legislation that is not clearly stated therein." (Internal quotation marks omitted.) Hyllen-Davey v. Planning Zoning Commission, supra, 57 Conn.App. 595. "Intervention allows one who was not a party in an original action to become a party upon his request. He has a derivative role by virtue of an action already shaped by the original parties . . . In sum, intervention does not mean initiate, and it is a word in the statute that . . . cannot [be] ignore[d]." (Citation omitted; internal quotation marks omitted.) Id., 596.
In Hyllen-Davey, the court dealt with a similar issue, that is, whether the intervention statute allows an intervenor to initiate a proceeding on its own in the absence of any pending proceeding. There the Plaintiffs claimed that § 22a-19 provided them an independent right to appeal a decision of a planning and zoning commission where they had not intervened in the underlying administrative hearing and no parties to the hearing had appealed. There the court stated: "Section 22a-19 does not grant the plaintiffs the right to initiate their own appeal without having first participated in the administrative proceedings or having joined in an existing appeal by other parties. Furthermore, the plaintiffs did not intervene in a `proceeding' as required by § 22a-19 . . . [T]he term proceeding, as ordinarily used, is generic in meaning and broad enough to include all methods involving the action of courts . . . A `proceeding' is defined as any application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object." (Citations omitted; internal quotation marks omitted.) Id. "Simply put, the plaintiffs could not intervene in any proceeding under § 22a-19 because no proceeding existed for the plaintiffs to join. Proceeding means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them of opposing judgments and of executing . . . Ordinary proceedings intend the regular and usual mode of carrying on a suit by due course of common law." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 596-7.
In Tele Tech of Connecticut Corporation v. Department of Public Utility Control, 270 Conn. 778, 855 A.2d 174 (2004) the Court discussed the meaning of "proceeding" in the context of the Uniform Administrative Procedure Act. There the Court stated: "[W]hen a statute does not define a term, such as the term `proceedings' in § 4-182(c), `[w]e . . . look to the common understanding of the term as expressed in the dictionary.' Bock Clark Corp. v. Dept. of Consumer Protection 265 Conn. 400, 411, 828 A.2d 601 (2003); see also General Statutes § 1-1(a) (`[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language'); Secretary of the Office of Policy Management v. Employees' Review Board, supra, 267 Conn. at 265, 837 A.2d 770 ('[i]n the absence of a statutory definition, words and phrases in a statute are to be construed according to their common usage'). Webster's Third New International Dictionary defines a `proceeding' as `a particular action at law or case in litigation . . .' A `hearing,' on the other hand, encompasses something narrower and more specific, namely, `a session . . . in which witnesses are heard and testimony is taken' or an `opportunity to be heard or to present one's side of a case'; Webster's Third New International Dictionary; . . . Although the department maintains that `agency proceedings,' as used in § 4-182(c), means `agency hearings,' and the office of consumer counsel claims that the term means the `agency's final decision,' the definitions of these terms suggest that they are not analogous and that a proceeding encompasses a broader category of events than that encompassed by a hearing or a final decision. We therefore reject any claim that, for purposes of § 4-182(c), the department initiated proceedings at the time of the department's January 15, 2002 hearing or when the department rendered its final decision on May 1, 2002. We conclude that the department instituted the proceedings against Tele Tech when it issued the August 17, 2001 letter to Tele Tech informing it of its initiation of the new investigation." Id., 798-9. The DPUC's letter of August 17, 2001 advised Tele Tech that it was initiating an investigation into whether it should revoke its certificate of public convenience and necessity. Thus the Court concluded that the DPUC had instituted proceedings with the meaning of General Statutes § 4-182(c) when it initiated an investigation of the Plaintiff.
General Statutes § 4-182(c) provides: "No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of the facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license."
"[Section] 22a-19 only allows intervention in an `administrative, licensing, or other proceeding.' It would be a strained interpretation of the word `proceeding' to say that a local official . . . in any situation where he or she is authorized by state law to issue a license, ruling, or order without the need to hold a hearing, was a `proceeding.' It certainly would not meet the Black's Law Dictionary definition of a `proceeding' . . . a hearing or trial which is adjudicatory and sometimes legislative in nature. To hold otherwise would open almost every administrative act of local bureaucracies to § 22a-19 intervention." Weissberg v. Evans, Superior Court, judicial district of New Haven, Docket No. CV 04 0487261 (October 29, 2004, Corradino, J.) ( 38 Conn. L. Rptr. 196). In Weissberg the court did not need to make a determination of whether a decision by a local director of health approving a proposed septic system was a proceeding since the Plaintiffs had not filed a verified petition as required by the statute.
Applying the Supreme and Appellate Courts' decisions in Tele Tech and Hyllen-Davey, to be considered a "proceeding" as used in Section 22a-19 would not require that a hearing be held, as suggested in Weissberg, but it does indicate some discretionary action by the agency on a request for relief must occur beyond simply a ministerial review by the staff of the agency to determine compliance with previously approved regulations or orders. If the court were to determine otherwise, every application for a permit from a municipal or state agency, which involves no exercise of discretion by the agency but simply a paper review to determine if the criteria for such a permit have been met, would be subject to intervention under the statute and potential contention. And, as the court held in Hyllen-Davey, § 22a-19 does not permit an entity to create a "proceeding" where none existed in which it could have intervened.
In the present case, §§ 14.1.1.2 and 17.3.2.2 of the Vernon zoning regulations give the town building official, engineer and planner the authority to approve minor modifications to a site plan and special permit without hearing and approval by the PZC. Pursuant to these regulations, they approved minor modifications of the previously approved site plan and special permit for the proposed Price Chopper and determined that no further proceedings were required by the PZC. The action of the ZEO was simply to determine that the Plaintiffs' plans were consistent with the modified site plan and special permit. Whether those decisions were correct was not for him to decide. See, Sciortino v. Zoning Board of Appeals, 87 Conn.App. 143, 149 (2005). Pursuant to General Statutes § 8-3(f) a building permit cannot be issued "without certification in writing by the official charged with the enforcement of [the zoning] regulations that such building, use or structure is in conformity with such regulations . . ." Pursuant to Vernon's zoning regulations, Section 22.1, enforcement of the regulations is "by the Planning Zoning Commission via a Zoning Enforcement Officer." The ZEO here simply carried out his duties to see that the Vernon zoning regulations are complied with when he reviewed and approved the building permit and certificate of zoning compliance application for activities which had already been the subject of a site plan and special permit approval process. No "proceeding" took place.
"The court, even when expanding § 22a-19 to its farthest reaches, has never authorized an independent right to appeal by a nonparty to the administrative proceeding where no party has appealed from the agency's decision . . . If a person participates in the administrative proceeding under § 22a-19, then that person may bring an appeal under § 22a-19 for the limited purpose of raising environmental issues." (Citation omitted; internal quotation marks omitted.) Hyllen-Davey v. Planning Zoning Commission, supra, 57 Conn.App. 598. "The absence of appellate access through § 22a-19 to an administrative agency proceeding without prior intervention or the joining in an existing appeal does not inhibit the broad intention of the legislature in enacting the EPA." Id. "[A] statute should not be interpreted in any way to thwart its purpose . . . In construing the meaning of a statute, however, courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it . . . and [i]t is well settled that a statute must be applied as its words direct . . . The words of § 22a-19 direct citizens and other entities to protect the public trust of Connecticut's environmental resources through intervention in proceedings or judicial review. Section 22a-19 simply does not permit entities or individuals to conduct an independent, nonparty appeal where no parties from the underlying proceeding are appealing themselves and where the entities or individuals seeking to appeal did not participate in the underlying proceeding." (Citations omitted; internal quotation marks omitted.) Id., 599. Similarly, § 22a-19 should not be interpreted such as to allow intervention in every ministerial action of an administrative agency which has not reached the level of a "proceeding."
The Plaintiffs have no standing to appeal the ZBA's decision because there was no "proceeding" in which they could have intervened. The issuance of a zoning compliance certificate is not a proceeding under § 22a-19. A party may not appeal from a decision denying intervenor status if no proceeding took place. "A review of the text of § 22a-19 . . . reveals no language that even arguably suggests that the legislature intended to give environmental intervenors under § 22a-19 the right to appeal from administrative matters that are not otherwise appealable." Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 361, 832 A.2d 611 (2003).
In addition, this court recognizes that §§ 22a-19 and 22a-16 "[operate] hand in hand to grant a full range of protection to our state's environmental resources." Hyllen-Davey v. Planning Zoning Commission, supra, 57 Conn.App. 593. Section 22a-16 authorizes any citizen or organization, without having to first establish aggrievement, to initiate a declaratory or injunctive action to protect the public trust . . . [while] § 22a-19 allows "any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceeding." Id.
In light of the above, the court need not reach the other grounds set forth in the motion to dismiss. The Defendants' motion to dismiss is granted.
Jane S. Scholl, J.