Double I Ltd. Partnership v. Town of Glastonbury

540 A.2d 81, 14 Conn. App. 77, 1988 Conn. App. LEXIS 97
CourtConnecticut Appellate Court
DecidedApril 5, 1988
Docket5505
StatusPublished
Cited by15 cases

This text of 540 A.2d 81 (Double I Ltd. Partnership v. Town of Glastonbury) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Double I Ltd. Partnership v. Town of Glastonbury, 540 A.2d 81, 14 Conn. App. 77, 1988 Conn. App. LEXIS 97 (Colo. Ct. App. 1988).

Opinions

Foti, J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendants’1 motion to strike. The sole issue on appeal is whether the trial court erred in striking the plaintiff’s complaint for failure to allege facts sufficient to establish standing to challenge the disbursement of funds for the improvement of an unimproved road located in the town of Glastonbury.

The plaintiff brought an action against the defendant town of Glastonbury, in one count, seeking an injunction to prohibit the disbursement of funds for the improvement of an unimproved road within the town. The town moved to strike the complaint because the plaintiff lacked standing to challenge the actions of the town; the court granted this motion to strike. The plaintiff filed a substitute complaint which the court again struck for failure to allege facts sufficient to establish standing; the plaintiff then moved for permission to file a second amended complaint seventeen days after the court granted the defendants’ second motion to strike; the defendants objected to the plaintiff’s motion to amend on the grounds that the complaint was filed two days late; Practice Book § 157; and because the third complaint failed to allege any new facts upon which [79]*79relief could be granted. The court sustained the defendants’ objection and subsequently granted their motion for judgment.

The facts relevant to this appeal are as follows. The town maintains an unimproved road fund (fund) which is comprised of monies allocated from funds appropriated to the state’s commissioner of transportation by the legislature pursuant to General Statutes § 13a-175d.2 In 1985, the balance in the fund was approximately $107,000. That year, the defendant, Donald W. Fish, made a request that money be allocated for the purpose of improving Birch Mountain Road, an unimproved public road in the town. The plaintiff claims that it has standing to challenge the action of the town as a taxpayer; as an owner of property abutting another unimproved public road in the town and under article first, § 1, of the Connecticut constitution. We disagree.

In reviewing a “judgment following the granting of a motion to strike, we take the facts to be those as alleged in the substituted complaint, construed in a manner most favorable to the pleader. For purposes of appeal, all well pleaded facts and those facts necessarily implied and fairly provable from the allegations are taken as admitted.” Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 134, 492 A.2d 545 (1985).

The issue of standing implicates the court’s subject matter jurisdiction. Planning & Zoning Commission v. Goal, 9 Conn. App. 538, 542, 520 A.2d 246 (1987). Cen[80]*80tral to establishing standing is some allegation that the plaintiff has been aggrieved by the actions of the municipal entity.

“ ‘The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, “the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” ’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978), quoting Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The determination of aggrievement is a question of fact for the trial court, and the plaintiff has the burden of proving that fact.” Olsen v. Inland Wetlands Commission, 6 Conn. App. 715, 718, 507 A.2d 495 (1986).

The test for whether a party has standing to challenge the actions of his town is well settled. “[OJur cases in this area have required two conditions ... to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer ‘some pecuniary or other great injury.’ Bassett v. Desmond, [140 Conn. 426, 430, 101 A.2d 294 (1953)]; see Belford v. New Haven, [170 Conn. 46, 53, 364 A.2d 194 (1975)]; Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Gannon v. Sanders, [157 Conn. 1, 244 A.2d 397 (1968)]; see 18 McQuillin, Municipal Corporations (3d Ed.) §§ 52.12, 52.24.” Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 [81]*81Conn. 541, 549, 427 A.2d 822 (1980). The first condition ensures a legal relationship between the plaintiff and the municipality. The second condition ensures that the decision of the court is capable of providing specific relief to the litigant, not merely generalized relief.

Here, the plaintiff alleged specific facts sufficient to meet the first condition. The facts alleged in the complaint, however, fail to meet the second condition which requires that the plaintiff suffer some particularized injury.

Injury sufficient to meet the second condition may be met by alleging facts that demonstrate that the plaintiff will incur an increased tax burden as a result of the town’s actions. Bassett v. Desmond, supra. Here, the plaintiff is unable to allege such facts as the monies in the fund are provided by the state legislature, not from local tax revenue. Thus, any claim regarding a potential tax increase is identical to similar claims that each and every taxpayer in the state is capable of raising.

Similarly, the plaintiff’s claim that he was injured by the decision of the town to expend funds on Birch Mountain Road, rather than the unimproved road abutting his property, is merely a generalized challenge to the discretionary function of local government. This court will not disturb a discretionary action of local government absent a showing of fraud or a gross abuse of discretion. McAdam v. Sheldon, 153 Conn. 278, 281, 216 A.2d 193 (1965); 18 E. McQuillin, supra, § 52.21. In this case, the plaintiff alleged no facts upon which the trial court could reasonably have concluded that the town’s actions were fraudulent or a gross abuse of discretion.

The plaintiff next claims that he had standing to challenge the town’s actions because the allocation of monies from the fund was illegal. The only Connecti[82]*82cut authority cited for this proposition is Nevers v. Anderson, 40 Conn. Sup.

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Bluebook (online)
540 A.2d 81, 14 Conn. App. 77, 1988 Conn. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/double-i-ltd-partnership-v-town-of-glastonbury-connappct-1988.