Jolly, Inc. v. Zoning Bd. of Appeals of City of Bridgeport

• Decision Date: 21 May 1996
• Docket Number: No. 15212,15212
• Citation: 237 Conn. 184,676 A.2d 831
• Parties: JOLLY, INC., et al. v. ZONING BOARD OF APPEALS OF the CITY OF BRIDGEPORT et al.
• Court: Connecticut Supreme Court

Page 831

676 A.2d 831

237 Conn. 184

JOLLY, INC., et al. v. ZONING BOARD OF APPEALS OF the CITY OF BRIDGEPORT et al.

No. 15212.

Supreme Court of Connecticut.

Argued Jan. 10, 1996.

Decided May 21, 1996.

Gregory M. Conte, Bridgeport, for appellants (plaintiffs).

Arthur C. Laske III, Assistant City Attorney, with whom, on the brief, was Barbara Brazzel-Massaro, Associate City Attorney, for appellee (named defendant).

George J. Markley, Bridgeport with whom was Robert M. Josovitz, for appellee (defendant Cyrco, Inc.).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

NORCOTT, Associate Justice.

The principal issue in this appeal is whether we should continue to adhere to our longstanding interpretation of "aggrieved person" in General Statutes § 8-8. ¹ In accordance with existing precedent, any taxpayer in a municipality has automatic standing to appeal from a zoning decision involving the sale of liquor in that community. The plaintiffs, Jolly, Inc., Richard Tuliano and Carman Tuliano, ² appeal from the judgment of the trial court dismissing, for lack of aggrievement, their administrative appeal from the decision of the named defendant, the zoning board of appeals of the city of Bridgeport (board), in favor of the defendant Cyrco, Inc. (Cyrco). ³ The plaintiffs' initial claim is that the trial court improperly concluded that Cyrco had not waived its right to contest jurisdiction by failing to file a motion to dismiss in accordance with § 8-8(j). See footnote 1. The plaintiffs also claim that the trial court improperly concluded that they had failed to prove that they were aggrieved, in the classical sense, by the board's decision. ⁴ The plaintiffs also claim that the trial court, in dismissing their appeal for lack of subject matter jurisdiction, improperly ignored binding precedent wherein we have consistently concluded that taxpayers in zoning appeals involving the sale of liquor are a priori aggrieved under § 8-8(a) and, consequently, have automatic standing to appeal.

We agree with the trial court that Cyrco did not waive its right to contest the court's jurisdiction to hear the appeal. We conclude, however, that our prior interpretation of § 8-8(a) is proper and that the trial court ignored such precedent when it determined that the plaintiffs did not have standing to prosecute their appeal. We conclude, therefore, that the plaintiffs can pursue their appeal because they are taxpayers in the municipality and the board's decision involves the sale of liquor; therefore, they are presumed to be aggrieved. Accordingly, we reverse the judgment of the trial court.

The facts underlying the plaintiffs' claims are as follows. In November, 1993, Cyrco, acting through its president, James A. Cyr, petitioned the board for a variance from the city zoning regulations. ⁵ The petition requested a variance of chapter 17, § 2, ⁶ of the regulations, which provides for a minimum of 1500 feet between liquor establishments, to permit Cyrco to relocate its existing liquor store from 1426 Pembroke Street to 572-578 Boston Avenue, where it would be located 1430 feet from the plaintiffs' liquor store.

After a public hearing, the board granted Cyrco's petition and the plaintiffs appealed to the trial court. ⁷ On appeal, the plaintiffs alleged that there had been insufficient proof of hardship to justify the board's decision to grant the variance requested by Cyrco. ⁸ Prior to reaching the issue of hardship, however, the court addressed the issue of the plaintiffs' aggrievement because it implicated the court's subject matter jurisdiction to hear the appeal.

At the outset, the court determined that the plaintiffs did not meet the criteria of statutory aggrievement, as provided in § 8-8(a), whereby a person who owns land that abuts or is within a radius of 100 feet of the land involved in the board's decision is considered automatically aggrieved. ⁹

The court further concluded that the plaintiffs were not classically aggrieved because they had failed to prove that their personal legal interests were specially and injuriously affected by the board's decision. In that connection, the court found that there was no evidence that the board's decision to grant the variance would have an adverse effect on the plaintiffs' property from an increase in road traffic, a change in traffic patterns or any physical impact, and that the only special adverse impact advanced by the plaintiffs, namely, a loss of economic advantage due to increased business competition, was highly speculative and insufficient to establish classical aggrievement.

Finally, while acknowledging that the plaintiffs, as taxpayers challenging a zoning decision involving the sale of liquor, had established that they were automatically aggrieved under existing case law, the court, nevertheless, refused to allow the plaintiffs the benefit of this long-standing rule because it concluded that the reasoning of such prior cases was flawed, anachronistic and should be overruled. ¹⁰ In light of its findings that the plaintiffs were neither statutorily nor classically aggrieved and, in the trial court's view, should no longer be considered automatically aggrieved based solely on the fact that they were taxpayers appealing from a zoning decision involving a liquor outlet, the trial court concluded that it was without subject matter jurisdiction to consider the merits of the plaintiffs' appeal. ¹¹

The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the trial court.

I

The plaintiffs first claim that the trial court improperly concluded that Cyrco had not waived its right to contest the court's jurisdiction by failing to file a motion to dismiss for lack of jurisdiction in accordance with § 8-8(j). ¹² The plaintiffs argue that § 8-8(j) mandates that jurisdiction can be contested only by a motion to dismiss and that failure to file such a motion, therefore, results in a waiver of one's right to contest jurisdiction in the future. We disagree.

We previously have indicated that pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal. Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702-703, 556 A.2d 602 (1989); Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 501, 264 A.2d 566 (1969); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 509, 242 A.2d 705 (1968). Failure to raise the issue of aggrievement is not a bar to future consideration of that issue because aggrievement implicates the court's subject matter jurisdiction. See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988); Practice Book §§ 143, 145." Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), rev'd, 235 Conn. 637, 668 A.2d 1314 (1995). "Ordinarily, a challenge to the court's jurisdiction is raised by the filing of a motion to dismiss. However, '[w]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion.' " Park City Hospital v. Commission on Hospitals &amp Health Care, supra, at 702, 556 A.2d 602. Section 8-8(j) does not present an exception to this rule. In the present case, therefore, we conclude that the trial court properly considered the issue of the plaintiffs' aggrievement prior to reaching the merits of the plaintiffs' appeal.

II

The plaintiffs next claim that the trial court, by dismissing their appeal for lack of subject matter jurisdiction, improperly ignored binding Connecticut Supreme Court precedent wherein we have consistently concluded, pursuant to § 8-8(a), that taxpayers in zoning appeals involving liquor outlets are presumed to be aggrieved and, therefore, have automatic standing to appeal. ¹³ See Macaluso v. Zoning Board of Appeals, 167 Conn. 596, 600-601, 356 A.2d 885 (1975); Dolan v. Zoning Board of Appeals, 156 Conn. 426, 428, 242 A.2d 713 (1968); M. & R. Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 281-82, 231 A.2d 272 (1967); Cowles v. Zoning Board of Appeals, 153 Conn. 116, 117, 214 A.2d 361 (1965); Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 287, 189 A.2d 396 (1963); London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962); Tyler v. Board of Zoning Appeals, 145 Conn. 655, 661, 145 A.2d 832 (1958); Zuckerman v. Board of Zoning Appeals, 144 Conn. 160, 163-64, 128 A.2d 325 (1956); O'Connor v. Board of Zoning Appeals, 140 Conn. 65, 71-72, 98 A.2d 515 (1953); Farr v. Zoning Board of Appeals, 139 Conn. 577, 583, 95 A.2d 792 (1953). ¹⁴ The issues raised by the plaintiffs have two parts: (1) whether the trial court improperly ignored binding precedent in concluding that the plaintiffs could not establish aggrievement solely by showing that they were taxpayers appealing a zoning decision involving a liquor outlet; and (2) whether we should overrule our prior interpretation and subsequent application of § 8-8(a), wherein we have held that taxpayers are, a priori, aggrieved persons under § 8-8 if the zoning decision involves premises used or to be used for the sale of liquor.

A

It is axiomatic that a trial court is bound by Supreme Court precedent. See Martin v. Plainville, 40 Conn.App. 179, 182, 669 A.2d 1241, 1242 (1996) (Appellate Court, as...