Lewis v. Swan, 16315

Page 127

716 A.2d 127

49 Conn.App. 669

Walter LEWIS v. Barbara SWAN et al.

No. 16315.

Appellate Court of Connecticut.

Argued Nov. 3, 1997.

Decided Aug. 11, 1998.

Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, Ridgefield, for appellant (plaintiff).

Robert A. Fuller, Wilton, with whom was Leo P. Carroll, Milford, for appellee (defendant Chelsea G.C.A. Realty Partnership, L.P.).

Before EDWARD Y. O'CONNELL, C.J., and DUPONT and SHEA, JJ.

DUPONT, Judge.

The plaintiff appeals from the trial court's judgment dismissing his complaint, which sought a judgment of mandamus and injunctive relief requiring the town of Clinton defendants ¹ to enforce certain provisions of the town zoning regulations against the remaining defendant, Chelsea G.C.A. Realty Partnership, L.P. (Chelsea). The dispositive issue in this appeal is whether a builder and developer who alleges that he engaged in owning and developing properties for many years in a particular town has standing to seek judicial aid to enforce that town's zoning regulations against another developer.

Chelsea was constructing a shopping center in the town at the time the complaint was filed. ² Specifically, the plaintiff sought the issuance of a writ of mandamus and injunctive relief mandating the town zoning enforcement officer and the other town officials to enforce the planning and zoning regulations and to issue a cease and desist order requiring Chelsea to remove from the shopping center any building exceeding the height of forty feet and to limit the area of any store leased in the shopping center to ten thousand square feet, as allegedly prescribed by the zoning regulations.

Chelsea filed a motion to dismiss on the ground that the plaintiff had failed to exhaust his administrative remedy of appealing from the zoning commission's approval of Chelsea's shopping center site plan. The trial court granted the motion to dismiss on that ground. While we agree that a judgment of dismissal by the trial court should have been rendered, we so conclude on the ground that the plaintiff lacked standing to bring this action. The defendant Chelsea has raised this alternate ground to affirm the judgment of dismissal. See Cotto v. United Technologies Corp., 48 Conn.App. 618, 624-25, 711 A.2d 1180 (1998); Foley v. Huntington Co., 42 Conn.App. 712, 742, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

The zoning commission's approval of Chelsea's site plan for the shopping center was granted on January 31, 1995, and the plaintiff did not appeal. The plaintiff filed the present action more than one year after the site plan approval. In granting Chelsea's motion to dismiss, the trial court relied on the rule that a plaintiff who fails to exhaust an available administrative remedy may not bring a separate action raising issues that could have been determined in an appeal from the decision of an administrative agency. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995).

No allegation of the complaint, however, attacks the zoning commission's approval of the site plan, nor does the plaintiff seek to have the approval invalidated. The entire complaint is concerned, not with the approval of the site plan, but with Chelsea's alleged failure to comply with certain provisions of the zoning regulations in the course of constructing the shopping center. The plaintiff claims that he could not have known of the alleged violations with respect to building height and store area at the time the site plan was approved and could not have appealed on grounds that did not then exist. We agree with the plaintiff.

At the time the alleged violations became evident, the plaintiff alleges that he brought them to the attention of the zoning enforcement officer. Although the plaintiff did not pursue an administrative appeal from the zoning enforcement officer's alleged refusal to enforce the zoning regulations, it is unclear in this case whether such an administrative remedy was available to him. Even if we assume that it was, the plaintiff need not have exhausted that remedy before bringing this action. ³ Cummings v. Tripp, 204 Conn. 67, 80, 527 A.2d 230 (1987). The plaintiff did not fail to exhaust his administrative remedies.

We next consider whether the plaintiff had standing to pursue a direct appeal. There are a number of cases in which plaintiffs have pursued direct appeals without having first exhausted administrative remedies, but such cases do not establish that persons such as the plaintiff in this case have standing. These cases are exceptions to the general rule that administrative remedies must be exhausted as a prerequisite to judicial appeals. In Reynolds v. Soffer, 183 Conn. 67, 438 A.2d 1163 (1981), it was held that a person specifically and materially damaged by a violation of zoning regulations that has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation without exhausting administrative remedies. The complaint in Reynolds alleged a nuisance that "adversely affects the plaintiffs' property, decreases its value, increases the risk of fire and other dangers, specifically endangering health as a result of rodents migrating from the defendants' property ... and noise, odors, pollution and disease-causing substances discharged from a new ventilating system." Id., at 68, 438 A.2d 1163. Reynolds was concerned with when a direct appeal may be taken without first having exhausted the appellate administrative route. It was not concerned with the standing of the person or entity to bring that direct appeal.

In cases such as Reynolds, the claims for relief included common law nuisance, as well as injunctive relief. All assumed that the plaintiffs had standing. See Cummings v. Tripp, supra, 204 Conn. at 76 n. 9, 527 A.2d 230 (nuisance action claiming "grievous injury, damage and harm" and "annoyance, personal inconvenience and irritation"); Scoville v. Ronalter, 162 Conn. 67, 76, 291 A.2d 222 (1971) ("sight, noise and disturbance of construction" and devaluation of plaintiffs' property); Jobert v. Morant, 150 Conn. 584, 588, 192 A.2d 553 (1963) (noise, traffic and other conditions detrimental to neighborhood); Blum v. Lisbon Leasing Corp., 173 Conn. 175, 178, 377 A.2d 280 (1977) ("smoke, loud noises, odor of burning rubber").

Where a party is found to lack standing, the trial court is without subject matter jurisdiction to adjudicate the cause of action. Tomlinson v. Board of Education, 226 Conn. 704, 717-18, 629 A.2d 333 (1993). Lack of subject matter jurisdiction may be raised at any time. Blakeney v. Commissioner of Correction, 47 Conn.App. 568, 574-75, 706 A.2d 989 (1998). " 'Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.... Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).' " Amodio v. Amodio, 45 Conn.App. 737, 739, 697 A.2d 373 (1997), cert. granted on other grounds, 243 Conn. 963, 707 A.2d 1265 (1998).

A motion to dismiss admits all facts well pleaded. Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378 (1996), rev'd on other grounds, 243 Conn. 1, 699 A.2d 995 (1997). "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. Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990), and cases cited therein." Pamela B. v. Ment, 244 Conn. 296, 308-309, 709 A.2d 1089 (1998). In the present case, no evidence was offered in the trial court on the issue of standing. For purposes of determining whether the plaintiff has standing, we assume the factual allegations in the complaint to be true. ⁴ See Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, at 793, 677 A.2d 1378.

The plaintiff alleges in his complaint that he is a builder and developer and that for many years he has been, and continues to be, engaged in owning and developing commercial properties in the town of Clinton. The plaintiff also alleges that Chelsea failed to comply with the town's zoning regulations in the course of constructing the shopping center and that the town has failed to enforce those regulations against Chelsea. The plaintiff further alleges that these circumstances constitute selective enforcement of the zoning regulations contrary to state law and put him at a severe economic and competitive disadvantage. He claims that he is subject to the same zoning regulations but does not allege that he has actually complied with them at any site built, developed or owned by him and does not allege that he is the owner of another shopping center in the town.

"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief...." (Citations omitted; internal quotation marks omitted.) Id., at 794, 677 A.2d 1378.

"Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. [Assn. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ]; Ducharme v. Putnam, 161 Conn. 135, 139, 285...