Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of …

• Decision Date: 19 September 2000
• Docket Number: (AC 20206)
• Citation: 758 A.2d 408,60 Conn. App. 21
• Court: Connecticut Court of Appeals
• Parties: CONNECTICUT POST LIMITED PARTNERSHIP v. SOUTH CENTRAL CONNECTICUT REGIONAL COUNCIL OF GOVERNMENTS ET AL.

60 Conn. App. 21

758 A.2d 408

CONNECTICUT POST LIMITED PARTNERSHIP v. SOUTH CENTRAL CONNECTICUT REGIONAL COUNCIL OF GOVERNMENTS ET AL.

(AC 20206)

Appellate Court of Connecticut.

Argued June 13, 2000.

Officially released September 19, 2000.

Foti, Zarella and Peters, JS. Ronald J. Cohen, with whom was Robert B. Flynn, for the appellant (plaintiff).

Joseph L. Rini, for the appellees (named defendant et al.).

Philip R. Pastore III, deputy corporation counsel, with whom, on the brief, was Thayer Baldwin, Jr., corporation counsel, for the appellee (defendant city of New Haven).

Opinion

PETERS, J.

The city of New Haven has initiated planning for a controversial project to develop a new regional shopping mall adjacent to Interstate Route 95 at Long Wharf.¹ The issue in this case is whether the owner of a competing shopping mall in Milford, eight miles south on Interstate Route 95, has standing to challenge the validity of the approval of the Long Wharf plan by the regional planning commission. That approval determined only that the Long Wharf plan was in accord with the provisions of a previously adopted regional plan. As did the trial court, we conclude that the competing owner has not established the requisite standing, either on the basis of classical aggrievement or on the basis of statutory entitlement to raise environmental concerns.

The four count complaint of the plaintiff, Connecticut Post Limited Partnership,² alleged that the defendants, the south central Connecticut regional council of governments (council),³ the south central regional planning commission (planning commission)⁴ and the city of New Haven (city), had failed to conduct statutorily required development reviews in accordance with the standards set forth in General Statutes §§ 8-189,⁵ 8-191⁶ and 8-35a.⁷ The plaintiff sought declaratory, injunctive and mandamus relief.

The defendants moved to dismiss the complaint for lack of subject matter jurisdiction due to lack of standing to pursue its merits. See Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984) (standing has jurisdictional implications); Molitor v. Molitor, 184 Conn. 530, 532-33, 440 A.2d 215 (1981) (same). The defendants claim that the plaintiff lacks standing, either as a matter of classical aggrievement or as a matter of statutory entitlement to raise environmental issues. After a hearing for the presentation of arguments, the court granted the motions to dismiss. In a careful and comprehensive opinion, the court concluded that the plaintiff lacked standing of any kind to pursue any of the counts of its complaint. The plaintiff has appealed from the judgment dismissing its complaint. The issues raised by the plaintiff are entitled to plenary appellate review because the court's judgment was based entirely on the legal inferences to be drawn from presently uncontested facts. SLI International Corp. v. Crystal, 236 Conn. 156, 163-64, 671 A.2d 813 (1996); Taft v. Wheelabrator Putnam, Inc., 55 Conn. App. 359, 362, 742 A.2d 366 (1999), cert. granted on other grounds, 252 Conn. 918, 919, 744 A.2d 439, 440 (2000).

I FACTUAL RECORD

To obviate the need for an evidentiary hearing, the parties stipulated that the standing issue would be resolved on the basis of five documents presented by the plaintiff, i.e., its complaint and the four supporting affidavits that it had filed in opposition to the defendants' motions to dismiss. The parties agreed, as the law requires, that the court should accept as true the factual allegations contained therein and that the court should consider all reasonable inferences to be drawn therefrom with a view to sustaining the validity of the complaint. See Pamela B. v. Ment, 244 Conn. 296, 308-309, 709 A.2d 1089 (1998); Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).

The court's memorandum of decision and the record describe the relevant facts. The plaintiff owns a shopping center that, because of its geographical proximity to Long Wharf, is at risk of economic damage if the city's Long Wharf project is implemented. A regional plan formulated between 1966 and 1968⁸ recognized the need for careful analysis of proposed shopping centers to assure that such centers meet comprehensive development objectives. This concern was reiterated in a more elaborate 1990 statement by the planning commission.⁹ The regional plan expressly identifies the plaintiffs shopping center as "prosperous and stable." While the plaintiff has been privately financed, development of the Long Wharf Mall is expected to be subsidized by eighty-five million dollars in state and municipal spending.

The city asked the planning commission to approve the proposed Long Wharf plan as consistent with the existing regional plan. On December 10, 1998, the planning commission held a meeting at which it gave the requested approval.¹⁰ The planning commission took this action without holding a public hearing, without permitting the plaintiffs intervention and without evaluating the potential impact of the Long Wharf plan on the economic or ecological development of the region. The various statutes cited by the plaintiff contain provisions that impose on the planning commission the duty, in some circumstances, to conduct studies and to prepare analyses with respect to the regional consequences of proposed municipal development projects. The planning commission did not undertake such studies or analyses before it approved the city's proposal.

II

STANDING BASED ON CLASSICAL

AGGRIEVEMENT

The basic principles of the law of standing are undisputed. "The fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.... The [underlying] requirements of justiciability and controversy are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.... As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great." (Citations omitted; internal quotation marks omitted.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-13, 508 A.2d 743 (1986); Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 463-66, 673 A.2d 484 (1996); Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 173, 592 A.2d 386 (1991); Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).

A plaintiff that claims standing to pursue a cause of action must satisfy a two part standard. "[F]irst, the party claiming [standing] must successfully demonstrate a specific personal and legal interest in the subject matter of the decision .... Second, the party claiming [standing] must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision...." Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158-59, 699 A.2d 142 (1997). In addition, with respect to the second part of the test, a party seeking recovery for an alleged statutory violation must show that it "is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."¹¹ (Internal quotation marks omitted.) Id., 160; United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 343, 663 A.2d 1011 (1995).

Even if we were to agree with the plaintiff that it has a specific personal and legal interest in the planning commission's approval of the Long Wharf plan,¹² it must overcome insurmountable obstacles to establish that it has demonstrated a risk of cognizable injury. The critical problem for the plaintiff is that its position as a potential competitor of the Long Wharf Mall does not, per se, give it standing to challenge the validity of the planning commission's approval of the city's plan.¹³ "Ordinarily, an allegation that a governmental action will result in competition harmful to the complainant's business would not be sufficient to qualify the complainant as an aggrieved person." State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 301, 524 A.2d 636 (1987); Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 297, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

The plaintiff argues, however, that it has standing in this case because its injury derives not from ordinary market forces but from unfair competition arising out of governmental action that will result in (1) redirection of existing sales away from the plaintiff to the Long Wharf Mall, (2) state and local subsidization of the development of the Long Wharf Mall and (3) exacerbation of traffic congestion on Interstate Route 95. The plaintiff relies principally on State Medical Society.

In State Medical Society, our Supreme Court held that a licensed physician had standing to contest the validity of an administrative action that enlarged the area of the body that fell within the practice of podiatry. State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. 304. Such enlargement, the court held, could constitute unfair and illegal competition because it could constitute an illegal encroachment on the professional practice of the physician. Id., 304-305.

The holding of State Medical Society is, however, distinguishable from this case on the ground that the plaintiff physician in that case was a person who had been granted a governmental license to conduct his business. Such a license confers a property interest that has constitutional implications. See Lewis v. Swan, 49 Conn. App. 669, 679, 716 A.2d 127 (1998). A person in the position of the plaintiff in this case has no such property interest in protection from competition. The fact that the Long...