Double I Limited Partnership v. Town of Glastonbury, 14 Conn. App. 77

Foti, J. The plaintiff appeals from the judgment rendered after the trial court granted the defendants’ 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 relief 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. 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). Central 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 Conn. 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 Connecticut authority cited for this proposition is Nevers v. Anderson, 40 Conn. Sup. 539 (1984), aff'd, 201 Conn. 377, 517 A.2d 620 (1986). In Nevers, the plaintiff met both conditions of the test for standing articulated in Bassett v. Desmond, supra.

First, the plaintiff was a taxpayer of the town of New Britain; second, the pay increase the aldermen had voted for themselves, in contravention of the town charter, would have been funded by local tax revenue, thus, presenting the possibility of increased taxes for the plaintiff. As we have already pointed out, the plaintiff in this case cannot meet the second condition for standing as the monies which comprise the town’s unimproved road fund are allocated from state revenue, not local revenue.

The plaintiff’s assertion that Nevers stands for the proposition that a taxpayer has standing when his municipal entity engages in illegal conduct incorrectly represents the holding of that case. In Nevers, the Supreme Court did not reach this question nor will we reach it today.

In the ninth paragraph of its complaint, the plaintiff alleged that the town council violated the “Town Charter of the Town of Glastonbury.” Yet there is no reference to specific provisions in the town’s charter which the actions of the town council are alleged to have violated, nor does the plaintiff explain in its appellate brief how the actions of the town violated the charter. Similarly, the plaintiff’s allegation in paragraph eleven of its complaint, which alleges “collusion and/or bad faith,” is unsupported by any facts upon which the trial court could have found illegal conduct.

Thus, even if under some circumstances illegality coupled with taxpayer status could be an independent basis for taxpayer standing to sue, this plaintiff has failed to allege the threshold facts of illegality in its complaint to obtain that status. The plaintiffs final claim is that it has standing to sue under

article first, § 1 of the Connecticut constitution. In particular the plaintiff claims that the allocation of funds for Birch Mountain Road deprived him of constitutionally protected privileges because the town had not allocated any funds for the improvement of the unimproved road abutting his property. “When the thrust of the challenge is that the act violates

article first, § 1, of the state constitution, the plaintiffs have demonstrated such invalidity if they can show beyond a reasonable doubt that the legislation ‘directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby.’ Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 [1952]; Carilli v. Pension Commission, 154 Conn. 1, 6-7, 220 A.2d 439 [1966].” Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 115, 355 A.2d 72 (1974).

Although the plaintiff alleged, in its complaint, that Fish would benefit from improvements to Birch Mountain Road the plaintiff did not allege facts upon which the court could have concluded that the public would be denied these same benefits. We conclude, therefore, that the plaintiff’s complaint failed to allege a deprivation of constitutionally protected privileges or any specific injury sufficient to confer standing to challenge the town’s actions. There is no error. In this opinion Dupont, C. J., concurred. The original complaint named the town of Glastonbury as the sole defendant in this action.

Subsequent to the plaintiffs filing suit, Donald W. Fish moved to be joined as a party defendant claiming an interest in the disposition of the suit because he owned property abutting the road the town planned to improve. The plaintiff did not object to Fish’s motion to be joined and the court granted his motion.

General Statutes § 13a-175d provides in relevant part: “There shall be allocated from funds appropriated to the commissioner of transportation for town-aid grants for roads the sum of one million dollars annually, to be distributed pro rata to the towns in the state on the basis of the total mileage of unimproved highways in each town, for the improvement or maintenance of dirt and unimproved roads, including bridges on such roads . . . .”