DocketNumber: No. 555010
Citation Numbers: 2000 Conn. Super. Ct. 10650
Judges: HURLEY, JUDGE TRIAL REFEREE.
Filed Date: 8/29/2000
Status: Non-Precedential
Modified Date: 7/5/2016
The complaint is brought in one count and summarily claims, without factual basis, that the "plaintiff is aggrieved by such a granting of the special permit for Sprint PCS application for a telecommunications tower." Complaint, ¶ 4.
The defendant, Sprint PCS, moves to dismiss the plaintiff's appeal on the basis that the plaintiff is not aggrieved as a matter of law either statutorily or classically, by the Commission's decision. Thus, he does not have standing to bring the complaint and this court does not have subject matter jurisdiction to hear the appeal.
With respect to the plaintiff's standing to bring this appeal, i.e., the issue of whether he is aggrieved, he alleges only that "[t]he plaintiff is aggrieved by such a granting of the special permit for Sprint Spectrum L.P.'s application for a telecommunications tower." Complaint, ¶ 4. Such conclusory allegation, without factual basis, is insufficient to plead aggrievement and thus invoke the court's subject matter jurisdiction.
It is the plaintiff's burden to plead and prove aggrievement. C.G.S. §
"Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing. . . ."
Thus the plaintiff has the burden that he is aggrieved and has standing to bring this appeal. Here, because the plaintiff has failed to plead facts sufficient to the alleged aggrievement, the court lacks subject matter over the appeal.
There are two categories of aggrievement: statutory and classical. In order to be statutorily aggrieved by the Commission's decision, the plaintiff must plead and prove that he owns land that abuts or is within 100 feet of the property in dispute. C.G.S. § 8(a)(1). In order to show classical aggrievement, the plaintiff must satisfy a two-part test: first, he must demonstrate a specific personal and legal interest in the subject matter of the jurisdiction as distinguished from a general interest; second, he must establish that this specific personal and legal interest has been specially and injuriously affected by the decision.United Cable Television Services Corp. v. Department of Public UtilityCT Page 10653Control,
"Aggrieved person includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the Board."
"Land involved in" means the land claimed to be owned by the applicant, excepted by the Commission, as owned by the applicant, and on which the Commission based its decision. McNally v. Zoning Commission ofthe City of Norwalk,
The plaintiff is not classically aggrieved as a matter of law. The plaintiff cannot meet the first requirement for classical aggrievement: a demonstrated specific personal and legal interest in the subject matter of the Commission's decision, as distinguished from the general interest shared by the members of the community at large. United Cable TelevisionServices Corp. v. Department of Public Utility Control,
Regarding the plaintiff's objection to the motion to dismiss, the court finds that his motion is based upon a claim of facts not found in the CT Page 10654 pleadings. The plaintiff's objection improperly attempts to argue that facts not included in the complaint state a claim for aggrievement. The question of this court's subject matter jurisdiction must be determined based on the allegations of the complaint. Secondly, the substantive claims upon which the plaintiff basis his claims of aggrievement, i.e., health risks from radio frequency emissions from multiple color communication facilities, cannot be considered by a zoning commission pursuant to the federal telecommunications act and thus cannot form a basis for aggrievement. Finally, even if the plaintiff was not precluded from raising health concerns, these allegations do not support his claim for aggrievement as they do not demonstrate a specific personal and legal interest as distinguished from a general interest. Therefore, the allegations of the complaint are insufficient, on their face to plead aggrievement, and the motion to dismiss must be granted. Accordingly, since the court finds that there is no statutory aggrievement nor is there any classical aggrievement, the court grants the motion to dismiss.
D. Michael Hurley, Judge Trial Referee