text:
    CONNECTICUT POST LIMITED PARTNERSHIP v. SOUTH CENTRAL CONNECTICUT REGIONAL COUNCIL OF GOVERNMENTS ET AL.
    (AC 20206)
    Foti, Zarella and Peters, Js.
    Argued June 13
    officially released September 19, 2000

      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. 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, alleged that the defendants, the south central Connecticut regional council of governments (council) the south central regional planning commission (planning commission) 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, 8-191 and 8-35a. 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 1968 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. 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. 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.” (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 arid legal interest in the planning commission’s approval of the Long Wharf plan, 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 WTiarf Mall does not, per se, give it standing to challenge the validity of the planning commission’s approval of the city’s plan. “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 Wharf plan must be approved by a number of governmental agencies does not suffice to establish that planning commission approval in this case will result in unfair or illegal competition.

We conclude, therefore, that, as a common-law matter, the plaintiff has failed to establish the kind of injury that is necessaiy to afford it standing to question the planning commission’s approval directly. It is not enough that a new competitor would cause great economic injury to the plaintiff. See, e.g., Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 288-89, 189 A.2d 396 (1963).

The plaintiff argues, however, that it has statutory standing to compel the planning commission to enforce §§ 8-189, 8-191 and 8-35a because the plaintiff falls within the zone of interests to be protected or regulated by these statutes. We disagree.

“An existing competitor [is not automatically] within the zone of interests protected [by a regulatory statute and, therefore,] has no standing to raise claims as to the general fitness of an applicant.” (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 104, 717 A.2d 1276 (1998), quoting United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 344, 346. The question is, rather, whether the language and the legislative history of the regulatory statute demonstrate that the legislature intended the governmental actor to take competitive concerns into account. Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 165; United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 347; Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 177.

Light Rigging Co. is particularly instructive because it is a recent case recognizing a competitor’s standing to challenge the granting of a governmental license. Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 176. Two factors were of significance in Light Rigging Co. First, in that case, each claimant who challenged the validity of the issuance of additional certificates was itself the holder of a motor carrier certificate. Id., 174. Second, the applicable statute, General Statutes (Rev. to 1985) § 16-286, expressly “requires the DPUC to consider ‘the existing motor transportation facilities and the effect upon them of granting such certificate, [and] the public need for the service the applicant proposes to render’ when determining whether to grant a certificate of public convenience and necessity.” Id., 176.

Although the plaintiff operates its shopping mall in the same field of endeavor as would the Long Wharf Mall, concededly it is not itself a licensee to provide shopping or personal services. The plaintiff argues, nonetheless, that the statutory framework that governs planning commission approval of the Long Wharf plan sufficiently addresses competitive issues so that it too falls within these statutes’ zone of interests.

One of the statutes on which the plaintiff relies is § 8-189. That statute authorizes planning commission approval of a municipal development agency’s project plan that meets statutory specifications. These specifications include such routine matters as identification of the property to be developed and of the contemplated uses of the developed property. The project plan also must attest that the project will conform to any applicable regional plan and will contribute to the economic welfare of the municipality and the state.

We agree with the plaintiff that the manifest agenda of § 8-189 is the promotion of municipal and regional economic growth. Nonetheless, nothing in this section manifests legislative concern for the interests of individual competitors. Accordingly, we conclude that this statute does not assist the plaintiffs search for statutory standing.

The provisions of § 8-191 (a) (2), on their face, are similarly unhelpful to the plaintiffs search for a basis for standing. All that section addresses is the authority of the planning commission to determine whether a municipal development project “is in accord with the plan of development for such region.” General Statutes § 8-191 (a) (2). The section does not direct the planning commission to consider whether the project may cause injury to competitors.

The plaintiff reminds us, however, that both § 8-189 and § 8-191 (a) (2) expressly refer to a regional plan. The plaintiff argues that this language indicates a legislative intent to incorporate by reference the provisions of other sections, such as § 8-35a, that describe the matters that a planning commission must address in formulating a regional plan. Pursuant to § 8-35a, a regional plan “shall be based on studies of physical, social, economic and governmental conditions and trends and shall be designed to promote with the greatest efficiency and economy the coordinated development of its area of operation and the general welfare and prosperity of its people . . . .” To implement this objective, the 1966 regional plan expressly recognized the need for careful analysis of proposed shopping centers to assure that such centers met comprehensive development objectives. The regional plan described the plaintiffs shopping center as economically prosperous and stable.

The plaintiff maintains that, in light of this histoiy, it falls within the zone of interests protected by the various statutes that pertain to the adoption and enforcement of the 1966 regional plan. We agree that these regulatory statutes manifest a regulatory concern to promote healthy competition as an important aspect of sound regional planning to promote regional economic growth.

We disagree, however, that a regulatoiy concern to promote competition is to be equated, for standing purposes, with a regulatoiy concern to protect the interests of individual competitors. The plaintiff has cited no case that squarely so holds, and we know of none. The cases that limit the standing of existing licensees to challenge the granting of a new license to a new competitor look the other way. It is self-evident that the granting of any such new license is likely to have an adverse economic impact on existing licensees. Nonetheless, unless the applicable statute expressly requires consideration of the interests of existing competitors; see Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 177; an existing licensee has no standing to question the wisdom of adding potentially competing service providers to the market place. See Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 165; United Cable Television Services Corp. v.Dept. of Public Utility Control, supra, 235 Conn. 347.

The decision of our Supreme Court in Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 165, is especially germane. Pursuant to Med-Trans of Connecticut, Inc., even if the regional plan had identified the interests of competitors, rather than of competition, as matters requiring regulatory attention, the regional plan could not supplant or supplement the language of the governing statutes. Id., 167.

For the reasons described above, we conclude that the plaintiff does not have standing, under the principles of classical aggrievement, to challenge the approval of the Long Wharf plan by the planning commission. The court’s judgment with respect to this issue must be affirmed.

Ill

STANDING BASED ON THE CONNECTICUT ENVIRONMENTAL PROTECTION ACT

Even if it cannot prove classical aggrievement, the plaintiff claims that the provisions of General Statutes § 22a-16 afford it standing to pursue a challenge to the validity of the planning commission’s approval of the Long Wharf plan with respect to environmental issues such as air and water pollution. Although the complaint does not allege a violation of any provision of the Environmental Protection Act (EPA), General Statutes § 22a-l et seq., the plaintiff maintains that § 22a-16 confers upon it standing to enforce the environmental implications of the other regulatory statutes that it has invoked. We disagree.

At trial, the court, rejected, on two grounds, the plaintiffs claim for environmental standing. It concluded that the applicable statutes did not authorize the plaintiffs pursuit of such a claim. In addition, it concluded that pursuit of environmental claims was premature at this preliminary stage of administrative proceedings concerning the validity of the Long Wharf plan. We agree that the plaintiff has not established its right to invoke environmental standing.

With respect to statutory authority to pursue environmental claims, both parties rely on the opinion of the Connecticut Supreme Court in Middletown v. Hartford Electric Light Co., supra, 192 Conn. 596-97. That court stated that “invocation of the EPA is not an open sesame for standing to raise environmental claims with regard to any and all environmental legislation. . . . [Section] 22a-19 of the EPA, which permits any person, on the filing of a verified pleading, to intervene in any administrative proceeding and to raise therein environmental issues must be read in connection with the legislation which defines the authority of the particular administrative agency. Section 22a-19 is not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues.” (Citation omitted; internal quotation marks omitted.) Id., 597. The opinion applied the limitation on environmental standing previously articulated in Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250-51, 470 A.2d 1214 (1984).

The defendants read Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591, as limiting environmental standing under § 22a-16 to claims arising under the EPA itself. The opinion is not that broad.

The right to invoke environmental standing depends on whether the asserted environmental claim falls within the statutory jurisdiction of the particular gov-emmental agency authorized to adjudicate such a claim. As the court explained in Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591, inland wetlands agencies are not authorized to consider possible air pollution arising from the dispersal of toxic substances.

In this case, we conclude that the plaintiffs assertion of environmental standing cannot be sustained because the plaintiff has failed to identify any statute that confers on the planning commission the authority to consider environmental issues as a prerequisite to planning commission approval of a municipal project as being in accord with an existing regional plan. It may well be that the plaintiffs complaint may invoke environmental standing to challenge future decisions by the planning commission or other governmental actors concerning the viability and the propriety of the Long Wharf plan as it is finally configured. The plaintiff does not, however, have such standing now.

The judgment is affirmed.

In this opinion the other judges concurred.

       On February 26, 1999, the New Haven development commission and the Long Wharf Galleria, LLC, prepared a development plan for submission to the New Haven board of aldermen. Long Wharf Galleria, LLC, is a joint venture of New England Development and the Fusco Corporation. In this opinion we refer to the proposed project as the Long Wharf Mall.

       The plaintiff owns the Connecticut Post Mall, a shopping center located in Milford.

       The council is a development agency created pursuant to General Statutes § 4-124c, which authorizes the creation of “a regional council of elected officials ... by ordinance of the legislative bodies of two or more towns, cilies or boroughs . . . .” The members of the council are the elected officials of fifteen cities and towns in south central Connecticut. Although the plaintiffs complaint does not allege any direct wrongdoing by the council, we presume that the council has been named as a defendant because it has supervisory authority over the planning commission.
      The complaint states, at the outset, that the plaintiff initiated this action because “of the failure of the Regional Planning Commission ... of the South Central Connecticut Council of Governments ... to comply with their clear statutory duty to determine whether . . . [the Long Wharf plan] is in accord with the regional plan of development for the South Central Connecticut Region ....'’

         The planning commission is a development agency that, pursuant to General Statutes § 4-124o, must implement “the planning duties and responsibilities of a regional council of governments, including the making of a plan of development pursuant to section 8-35a . . . .” The planning commission reports to the council.

       General Statutes § 8-189 provides in relevant part: “Project plan. The development agency may initiate a development project by preparing a project plan therefor in accordance with regulations of the commissioner. The project plan shall include: (a) A legal description of the land within the project area; (b) a description of the present condition and uses of such land or building; (c) a description of the types and locations of land uses or building uses proposed for the project area; (d) a description of the types and locations of present and proposed streets, sidewalks and sanitary, utility and other facilities and the types and locations of other proposed site improvements; (e) statements of the present and proposed zoning classification and subdivision status of the project area and the areas adjacent to the project area; (f) a plan for relocating project-area occupants; (g) a financing plan; (h) an administrative plan; (i) a marketability and proposed land-use study or building use study if required by the commissioner; (j) appraisal reports and title searches; (k) a statement of the number of jobs which the development agency anticipates would be created by the project and ihe number and types of existing housing units in the municipality in which the project would be located, and in contiguous municipalities, which would be available to employees filling such jobs and (1) findings that the land and buildings within the project area will be used principally for industrial or business purposes; that the plan is in accordance with the plan of development for the municipality adopted by its planning commission and the plan of development of the regional planning agency, if any, for the region within which the municipality is located; that the plan is not mimical to any statewide planning program objectives of the state or state agencies as coordinated by the Secretary of the Office of Policy and Management; that the project will contribute to the economic welfare of the municipality and the state; and that to carry out and administer the project, public action under this chapter is required. Any plan which has been prepared by a redevelopment agency under chapter 130 may be submitted by the development agency to the legislative body and to the commissioner in lieu of apian initiated and prepared in accordance with this section, provided all other requirements of this chapter for obtaining the approval of the commissioner of the project plan are satisfied.”

       General Statutes § 8-191 (a) provides in relevant part: “Adoption of plan. Before the development agency adopts a plan for a development project ... (2) the regional planning agency, if any, for the region within which such municipality is located shall find that such plan is in accord with the plan of development for such region . . . .”

       General Statutes § 8-35a provides in relevant part: “Plan of development. Assistance to municipalities or other public agencies. Each regional planning agency shall make a plan of development for its area of operation . . . [that] will be beneficial to the area. Any regional plan so developed shall be based on studies of physical, social, economic and governmental conditions and trends and shall be designed to promote with the greatest efficiency and economy the coordinated development of its area of operation and the general welfare and prosperity of its people. . . . Such plan shall be designed to promote abatement of the poEution of the waters and air of the region. The plan of each region contiguous to Long Island Sound shaE be designed to reduce hypoxia, pathogens, toxic contaminants and floatable debris in Long Island Sound. ...”

       General Statutes § 8-35a sets forth the issues that a regional plan must address. Although that statute was amended in 1991 by Public Acts 1991, No. 91-170, to include environmental issues, the regional plan was not amended to reflect these statutory changes.

       The plaintiff also cites a 1992 draft regional plan, but that plan, although approved by the planning commission, was never adopted by the council.

       At the meeting, counsel for the planning commission advised its members that it was not their function to review “a specific mall proposal or any of its details.”

       In light of the language in Med-Trans of Connecticut, Inc., that a party must show that it “arguably [falls] within the zone of interests,” we disagree with the defendants’ assertion that a Connecticut plaintiff must establish that its interest “falls” (rather than “arguably” falls) within the zone of interests of the applicable statute. Contrary to the defendants’ assertion, the repeated citations by our Supreme Court of United States Supreme Court decisions on standing demonstrate that the zone of interests test in Connecticut does not differ from the federal test articulated in Assn. of Data Processing Services Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). See, e.g., Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 160; Gay & Lesbian Law Students Assn. v. Board of Trustees, supra, 236 Conn. 466; Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971).

       The defendants dispute even this much. They maintain that the risk of business impairment arising out of the Long Wharf plan is no greater for the plaintiff than it is for other business enterprises in the region. We need not address this issue.

       With respect to the issue of classical aggrievement, the parties have not addressed the issue of whether the applicable statutes were intended to create private causes of action to supplement the pervasive powers of the various regulatory agencies. This, too, is an aspect of standing. See Middletown v. Hartford Electric Light Co., supra, 192 Conn. 596.

       We agree with the defendants that the principles that determine what constitutes unfair competition for the purposes of standing have no relationship to the principles that define unfair practices under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiffs citation of cases such as Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 474 A.2d 780 (1984) is, therefore, inapposite.

       For the text of these statutes, see footnotes 5, 6 and 7.

       The plaintiff attempts to distinguish United Cable Television Services Corp. by pointing out that “the licensing proceeding [in that case] merely authorized a competitor to provide services in the cable operator’s franchise area.” It argues that the present case is different because “the [planning commission] proceeding not only authorize[d] the construction and operation of the mall project, but ... it also authorize[d] the extraordinary use of public money to create competition where none existed before.” Such hyperbole is misplaced. As the defendants correctly note, nothing in the record suggests that the approval of the project as consistent with the regional plan had the effect of authorizing the mall’s construction, operation or financing. The record does not even establish that approval was a necessary condition for going forward with the city’s plan.

       For text, see footnote 5.

       For the text of § 8-191 (a) (2), see footnote 6.

       For the text of § 8-35a, see footnote 7.

       Subsequent amendments to § 8-35a have not been incorporated into the 1966 regional plan.

       Although a subsequent 1990 statement by the planning commission elaborated on the special concerns associated with the development of new shopping centers, the plaintiff concedes that this statement was never adopted by the council. It is, therefore, irrelevant.

       General Statutes § 22a-16 provides in relevant part: “Action for declaratory and equitable relief against unreasonable pollution. . . . [A]ny person . . . may maintain an action ... for declaratory and equitable relief against . . . any instrumentality or agency of the state or of a political subdivision thereof ... for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .”

       Our conclusion overlaps with the court’s determination that, independent of statutory authority, the plaintiffs claim for environmental standing is premature. We need not discuss whether the principles of finality expressed in the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., would bar the plaintiffs action in this case under title 8 of the General Statutes. We lack a factual predicate for adjudicating the defendants’ invocation of the doctrine of primary jurisdiction, because the record does not establish what other reviews the Long Wharf plan is currently undergoing.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    NELSON GRANGER ET AL. v. A. AIUDI AND SONS ET AL.
    (AC 19192)
    Schaller, Hennessy and Zarella, Js.

      Argued March 30
    officially released September 19, 2000

      John R. Fomaciari,, with whom were James H. Throwe and Gregory P. Granger, for the appellants (plaintiffs).

      Peter J. Zagorsky, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiffs appeal from the judgment of the trial court rendered following a trial to the court determining that the concrete business of the substitute defendant, A. Aiudi & Sons, LLC, does not constitute a nuisance and that the plaintiffs are not, therefore, entitled to an injunction. On appeal, the plaintiffs claim that the court improperly (1) concluded that the defendant’s operation is not a nuisance, (2) failed to issue an injunction in their favor on the basis of the defendant’s zoning violations and (3) burdened their constitutional rights of free association and access to the courts and their rights to petition the government for the redress of grievances. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant operates a concrete business on Camp Street in Plainville. The defendant owns a seventeen acre parcel of land zoned as quarry industrial (quarry parcel) and a twenty-six acre parcel west of and adjacent to the seventeen acre parcel, which is zoned as residential R-11 (residential parcel).

The defendant has used the quarry parcel as a sand and gravel operation since the 1920s. Over time, the defendant installed a rock crushing, sand washing and concrete plant. The defendant currently uses the quarry parcel to crush stone into aggregate, to process and wash sand, gravel and crushed stone, and to manufacture concrete, all of which is permissible in a quarry industrial zone. The defendant uses the residential parcel to store unprocessed sand and gravel, which it eventually retrieves for the manufacture of concrete on the quarry parcel. In so doing, the defendant regularly traverses the property line between the two parcels.

The defendant stores approximately twelve dump trucks on the quarry parcel. It also has approximately twenty-one concrete mixers garaged and serviced on the quarry parcel. There is a service garage and an office building on the parcel as well.

The defendant’s hours of operation vary depending on demand, and the business has no definite starting time. On any given day, the operation can commence as early as 5 a.m. and conclude as late as 8 p.m. The defendant does not operate on Sundays. The rock crusher typically starts running at about 7:30 a.m. and stops at about 4:30 p.m. The dump trucks run on approximately the same schedule as the rock crusher, while the schedule of the concrete mixers may be longer, depending on demand.

The plaintiffs brought the underlying action by way of an amended complaint alleging that the defendant’s operation constitutes an unreasonable use of its property, and that the noise and air pollution as well as the water and traffic diversion interfere with the plaintiffs’ peaceful use and enjoyment of their properties. The amended complaint also alleged that the use of the roadway system in the vicinity of the defendant’s operation is above capacity and is recognized as among the worst in Plainville, and that all of the conditions stemming from the operation have diminished, and will continue to diminish, the value of the plaintiffs’ properties. Finally, the amended complaint alleged that the defendant’s operation is in violation of Plainville zoning ordinance § 400, which prohibits the defendant’s industrial use of its quarry parcel within fifty feet of any parcel that is zoned as residential, and that such violation caused the plaintiffs special damages. The plaintiffs sought relief in the way of a permanent injunction prohibiting the defendant from operating until it ceases its operations in the fifty foot buffer zone, a permanent injunction prohibiting the defendant from operating at “unreasonable and obnoxious hours,” and compensation for the alleged diminution in value of the plaintiffs’ properties.

Following a trial to the court, the court rendered judgment in favor of the defendants. In its memorandum of decision, the court concluded that neither the noise nor the dust or dirt emissions caused by the defendant’s operation create a nuisance as to the plaintiffs and that the plaintiffs had failed, therefore, to show that they had suffered irreparable harm. As to the zoning violations, the court assumed, without deciding, that the alleged activities of the defendant were in violation of the zoning regulations, but specifically found that the plaintiffs had not suffered any special damages and dismissed the claim. This appeal followed. Additional facts will be set forth where necessary.

I

The plaintiffs claim first that the court improperly failed to find that the defendant’s alleged creation of pollution and noise constitutes a nuisance. We do not agree.

To establish a nuisance, four elements must be proven: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages. Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972). Whether any of those essentials exist ordinarily is a question of fact. Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891 (1961).

“Appellate review of findings of fact is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Citation omitted; internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 708, 700 A.2d 1179 (1997).

A

The plaintiffs argue first that the court’s finding that the alleged air pollution from the defendant’s operation did not constitute a nuisance was clearly erroneous. We are not persuaded.

The plaintiffs sought to sustain their burden of proof with, inter alia, their own testimony. The court noted that all of the plaintiffs complained of dirt or dust on the exterior of their homes and on their properties, and that some complained of dust on the interior of their homes. Some claimed and some denied ever seeing the matter coming from the defendant’s plant, and some admitted that off-road vehicles create dust on a nearby sandlot on weekends.

The plaintiffs also produced the testimony of an expert, Mitchell Wurmbrand, a meteorologist. On the basis of an air quality dispersion model that he prepared for purposes of evaluating compliance with air quality standards, and without having visited the plant, Wurm-brand concluded that the defendant’s operation violates industry standards as to particulates. The court discounted the modeling as an estimate and not an actual measurement of particulates.

The defendant produced three experts in support of its position, Michael Schum and John Yocom, licensed professional engineers, and Norman Bowne, a meteorologist. Yocom and Schum collaborated on sample testing of particulates at the plant. They testified that on the basis of the data gathered in the sampling, the defendant’s operation did not violate the industry standard for excessive particulates. All three experts testified that in their opinions, the plant does not unreasonably interfere with the plaintiffs’ use of their properties. Yocom testified that he had no reason to believe that the plant presents a health hazard to any of the plaintiffs and that his firsthand observation of the plant revealed that the actual physical presence of dust is inconsistent with Wurmbrand’s testimony on that point.

In its memorandum of decision, the court stated that it did not find the analysis or the conclusions of Wurmbrand to be credible, but that it found the testimony of the defendant’s experts credible. Our Supreme Court has stated that “[i]t is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight. ” State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). “[T]he acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind.” National Folding Box Co. v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959). Where, as here, there is strongly conflicting testimony from the expert witnesses, the trier of fact must determine the credibility of that testimony and may believe all, some or none of the testimony of a particular witness. See Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989); Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).

The court in this case was faced with the conflicting testimony of the experts and found the defendant’s experts to be more credible. On the basis of that testimony, the court concluded that the defendant’s operation did not produce particulates to the point of creating a nuisance as to the plaintiffs. Furthermore, our review of the evidence does not leave us with a definite and firm conviction that the court committed a mistake. Accordingly, the court’s finding of fact that the alleged air pollution by the defendant did not cause a nuisance as to the plaintiffs was not clearly erroneous.

B

The plaintiffs also argue that the court’s finding that the noise from the defendant’s operation did not constitute a nuisance was clearly erroneous. We disagree.

The plaintiffs presented the testimony of Allan Smar-din, who was not a licensed professional engineer, but who has an electrical engineering degree and an acoustics firm, and for thirty-five years has performed noise measurements. The defendant presented the testimony of Bennett Brooks, a licensed professional engineer. As was the case with the testimony on particulates, the testimony and ultimate opinions of Smardin and Brooks conflicted in most respects. The court found Brooks’ testimony to be more credible. On the basis of that testimony, its observation of the site and other competent evidence, the court found that the noise created by the operation of the defendant’s plant and trucks did not exceed industry standards, and did not therefore constitute a nuisance. The court’s finding had ample basis in the record and as such was not clearly erroneous.

“Our Supreme Court recently set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the puipose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand. . . . Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995).” (Internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 62-63, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997). In light of our conclusion that the court’s findings that the particulates and noise did not constitute a nuisance were not clearly erroneous, the court’s decision to deny the plaintiffs’ request for an injunction on those grounds was not an abuse of its discretion.

II

The plaintiffs claim next that the court’s failure to grant them an injunction on the basis of the defendant’s alleged zoning violations was improper as a matter of law. We disagree.

The court assumed, without deciding, that the defendant violated § 400 of the Plainville zoning regulations, but denied the plaintiffs’ request for an injunction on that basis because the plaintiffs failed to prove special damages from the alleged violation. The court noted that “ ‘[t]hough the primary responsibility for enforcing zoning regulations rests with the zoning commission, where a violation results in special damage to an individual, the injured party has a right to seek injunctive relief [from the court].’ ” This is a proper statement of the law. See, e.g., Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975). Therefore, for the plaintiffs to succeed in their quest for injunctive relief, they needed to prove that they incurred special damages as a result of activities in the buffer zone. The court specifically found that there was “no economic or other special damage to [the] plaintiffs from those activities.” Contrary to the claim of the plaintiffs, the court did not apply incorrect principles of law.

The plaintiffs also argue that even if the court was correct in its application of the law, its finding of fact was clearly erroneous. We disagree. The court found that only one of the plaintiffs, Gladys Pietrowicz, lived in the vicinity of the buffer zone and that the presence of a concrete wall therein was not causing damage to her. This was based on the court’s view of the properties as well as the testimony of the plaintiffs’ expert. The court also found that the plaintiffs had failed to prove any specific economic damages from the activities within the buffer zone. The court considered the testimony of Peter Marsele, an appraiser and expert for the plaintiffs, who testified as to the value of the homes of three of the plaintiffs. The court found that Marsele’s testimony did not attempt to quantify any diminution of the homes’ value from the buffer zone activities, and that he did not consider any impact from those activities separate from the impact of the defendant’s entire operation. Because the court found that the plaintiffs could not show that the activity in the buffer zone caused them to suffer special damages, they could not bypass local zoning authorities by seeking injunctive redress for the zoning violations they alleged. See id. Our careful review of the record leads us to conclude that the court correctly applied the law and that its finding that the plaintiffs did not incur special damages as a result of the activity in the buffer zone was not clearly erroneous.

Ill

The plaintiffs claim finally that the court improperly burdened their constitutional rights of free association and access to the courts, and their rights to petition the government for the redress of grievances. This claim is without merit.

It is undisputed that the plaintiffs had their lawsuit financed, at least in part, by a major competitor of the defendant. The plaintiffs claim that the court “clearly considered [the] plaintiffs’ association with and financing by [the defendant’s competitor] as a filter through which it weighed the evidence” and that such consideration “led the trial court to ignore the plaintiffs’ overwhelming testimony and other evidence.”

The court made three references to the competitor in its memorandum of decision. First, at the conclusion of its statement of facts, the court stated: “The plaintiffs’ suit has essentially been financed by ... a nonparty major concrete competitor of [the defendant] and an asphalt producer. The plaintiffs were clearly unaware that approximately $70,000 in plaintiffs’ expert fees, and between $90,000 [and] $165,000 in fees for the three plaintiffs’ attorneys, had been incurred as of the end of trial.” Second, in the context of discussing the reliability of the model produced by the plaintiffs’ expert regarding particulates, the court stated that the expert “made those subjective judgments without visiting the [defendant’s] plant site and relying in part upon information from the financier of the suit, [the defendant’s competitor].” Finally, near the end of its memorandum of decision, the court stated: “While [the defendant pleaded] various other special defenses, including, inter alia, unclean hands by reason of [the competitor] financing this litigation, and [the] plaintiffs replied in denial and avoidance thereof, the court need not and does not reach these issues in light of the above.”

As to the first statement, it is a factual predicate for the court’s discussion of the defendant’s special defense of unclean hands, i.e., the third statement. Prior to trial, the issue of whether the plaintiffs had unclean hands on the basis of their alleged solicitation of funds was the subject of a plaintiffs motion to strike and as such was relevant to the court’s decision. As to the second statement, it was made in the context of the comt’s assessment of the weight of the evidence and, as such, was proper. In any event, there is no indication that the court drew adverse inferences against the plaintiffs on the basis of their association with the competitor and, as is shown by its lengthy, comprehensive memorandum of decision, the court did not ignore the evidence. There is no constitutional violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Nelson Granger, Jeannette Granger, Robert Mastrianni, Patty Mastrianni, Dennis Heckman, Christine Heckman and Gladys Pietrowicz. The plaintiffs all either own or reside on property located in the vicinity of the concrete business operated by the defendant A. Aiudi & Sons, LLC.

       The original defendants were A. Aiudi & Sons, a dissolved partnership; Elmo R. Aiudi, a principal partner in A. Aiudi & Sons; and the estate of Joseph Aiudi, the legal entity holding the assets of Joseph Aiudi, a deceased partner in A. Aiudi & Sons, the administrators of which are Nicholas Champ and Theresa A. Aiudi. At trial, the parties stipulated to the substitution of A. Aiudi & Sons, LLC, as the successor in interest to defendants A. Aiudi & Sons and the estate of Joseph Aiudi. We refer in this opinion to A. Aiudi & Sons, LLC, as the defendant.

       “Particulates” is the term used by industry experts to refer to dust and dirt emissions.


text:
    PETER RUSTICI ET AL. v. DANNEL MALLOY ET AL.
    (AC 18509)
    Schaller, Spear and Pellegrino, Js.

      Argued May 10
    officially released September 19, 2000

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Andrew J. McDonald, corporation counsel, for the appellants (named defendant et al.).

      Leon M. Rosenblatt, with whom, on the brief, was David S. Rintoul, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendants, Dannel Malloy, John Byrne, James Haselkamp and the city of Stamford, appeal from the trial court’s order granting the plaintiffs’ motion for a temporary injunction that prohibited the city from continuing to maintain a fire engine team at one of the volunteer fire stations in the Long Ridge section of the city. On appeal, as a preliminary matter, the defendants claim that the temporary injunction is an appealable final judgment, pursuant to General Statutes § 31-118. In the alternative, the defendants assert that their appeal should be allowed pursuant to State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The plaintiffs, however, maintain that the court’s order is not a final judgment and, thus, is not appealable. We conclude that the issuance of the temporary injunction is not a final judgment and is, therefore, not appealable.

The record discloses the following facts. The plaintiffs brought this action against the city of Stamford; the city’s mayor, Malloy; the city’s director of public safety, Byrne; the city’s director of labor relations, Haselkamp; and the Long Ridge Fire Company (fire company). The plaintiffs Peter Rustici, Kevin Re, Robert Bennett, Donald Berg, James Chevalier, John Keenan, Ralph Nau and Gunther Schaller are professional firefighters working as drivers for the fire company, and they constitute the membership of the Long Ridge Paid Drivers Association (drivers association). The fire company is a volunteer company. The plaintiffs Elizabeth Hasson, Nau, Bennett and Schaller are residents of the Long Ridge area and brought the action individually and on behalf of all taxpayers residing within the Long Ridge area. Keenan is a Stamford taxpayer. The plaintiffs sought temporary and permanent injunctive relief and a declaratory judgment regarding the defendants’ actions with regard to the staffing and funding of the fire company. They alleged that the defendants breached the city charter regarding the autonomous nature of the fire company. They also alleged that the defendants conspired to force Rustici, Re, Bennett, Berg, Chevalier, Keenan, Nau and Schaller to give up their employment with the volunteer company and to become city employees, thus changing their collective bargaining rights, job seniority, security and rank, retirement, Social Security and health insurance.

The dispute stems from the defendants’ refusal to fund two positions at the fire company and their decision instead to transfer sixteen firefighters from the Stamford fire and rescue department. The plaintiffs alleged that if the defendants had funded the two requested positions in Long Ridge, the cost to taxpayers would have been approximately $150,000 per year as opposed to the $1.2 million per year cost for the transferred group. The plaintiffs Hasson, Nau, Bennett and Schaller, individually and on behalf of other Long Ridge residents, argued that they had to pay more in taxes because of the defendants’ action. They also contended that the action violates the city charter. The plaintiffs alleged that the defendants illegally sought to control the fire company, to interfere with their liberty, associational and property rights, and to destroy the collective bargaining relationship the fire company has with its professional firefighters and its union, the drivers association.

The plaintiffs also sought a temporary injunction ordering the defendants to cease and desist from interfering with the organization, status and property of the fire company. They sought a temporary order that the Stamford fire service district firefighters be removed from the fire company and that the defendants restore the tax money raised from north Stamford residents for the benefit of the company.

After an evidentiary hearing, the court on May 29, 1998, granted in part the request for a temporary injunction. The court found that “the plaintiffs, as taxpayers of Stamford, may enjoin the defendants’ unauthorized disbursement of public funds.” The court enjoined the defendants “from interfering with the organization, status and property of the [fire company]” and “from continuing to station firefighters from the Stamford fire and rescue at station two.” It also enjoined the defendants from withholding appropriated funds and from failing to appropriate sufficient funds to provide the necessary level of fire protection.

The plaintiffs also sought temporarily to enjoin the defendants from interfering with the collective bargaining relationship between the fire company and its paid firefighters. The court concluded that the city did not interfere with the collective bargaining relationship in the area of insurance and pension benefits. The court ruled that the city had not interfered with the plaintiffs’ collective bargaining with the fire company because the city held consolidation discussions with union representatives and the fire company. The court declined to issue injunctive relief on this claim.

The plaintiffs argue that the order appealed from is not a final judgment and, thus, this appeal is not properly before this court. We agree.

“It is axiomatic that . . . the subject matter jurisdiction of the Appellate Court ... is governed by statute. ... It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-2781 (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); [our] appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263 . . . .” (Citations omitted; internal quotation marks omitted.) Ruggiero v. Fuessenich, 237 Conn. 339, 344-45, 676 A.2d 1367 (1996).

“[ I]n the absence of a statutory exception, the denial of an application for a temporary injunction generally is not an appealable final judgment. . . . General Statutes § 31-118, however, authorizes any party aggrieved by a decision of the court on an application for a temporary injunction in a labor dispute to appeal from the final judgment thereon.” (Citation omitted.) International Assn. of Firefighters, Local 786 v. Serrani, 26 Conn. App. 610, 611, 602 A.2d 1067 (1992). “[S]uch an appeal lies if, but only if, the injunction was granted in a case ‘involving or growing out of a labor dispute.’ H.O. Canfield Co. v. United Construction Workers, 134 Conn. 358, 360, 57 A.2d 624 [1948].” Devine Bros., Inc. v. International Brotherhood, 145 Conn. 77, 80, 139 A.2d 60 (1958).

The defendants argue that this matter arises from a labor dispute and thus constitutes a final judgment. Notwithstanding the broad definition of “labor dispute” under General Statutes § 31-112 (c), the temporary injunction at issue in this case does not arise from a labor dispute and, therefore, is not a final judgment pursuant to § 31-118. The court expressly found that this was not an “injunction on the labor disagreement” and found instead that the facts presented a “charter problem.” Furthermore, “General Statutes § 31-115 sets forth five facts that the trial court must find to exist before it may grant injunctive relief in a labor dispute. Each is a . . . prerequisite to injunctive relief. If any of the factual predicates are not established, the court cannot grant injunctive relief.” International Assn. of Firefighters, Local 786 v. Serrani, supra, 26 Conn. App. 613. The court did not make any findings whatsoever with respect to those five facts and, instead, limited the injunction to claims that arose out of charter issues raised by the plaintiffs in their capacity as taxpayers of the city.

Our Supreme Court has stated that the trial court must, as a prerequisite to appellate review, find that a labor dispute existed. See Devine Bros., Inc. v. International Brotherhood, supra, 145 Conn. 82. “[T]he finding should set forth the facts supporting whatever conclusion is reached on whether, in the light of the statutory definition, a labor dispute is involved.” Id. “As a consequence [of a failure to make such a finding], [the] appeal cannot be maintained . . . .’’Id. Although Devine is based in part on an outdated system of appellate review; see McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d

Our Supreme Court has “recognized ... in both criminal and civil cases, that certain otherwise interlocutory orders may be final judgments for appeal purposes. ... An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, [191 Conn.] 31 ... . Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that [necessarily] results in a dismissal of the appeal.” (Citations omitted; internal quotation marks omitted.) Ruggiero v. Fuessenich, supra, 237 Conn. 344-45.

The defendants argue that the issuance of a temporary injunction without any justification for the lack of bond satisfies the second part of the Curcio test for finality. The defendants further argue that a temporary injunction ordering the city to vacate the fire station equates to an eviction and, thus, should be considered a final judgment. We disagree.

“The second test for finality . . . focuses not on the proceedings involved, but on the potential harm to the appellant’s rights. [An interlocutory order] will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial. . . . The second prong of Curcio requires, therefore, the [appellants] to prove that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [appellants] irreparably harmed unless they may immediately appeal.” (Citation omitted; internal quotation marks omitted.) Id., 347.

“For an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the [party] already holds. The right itself must exist independently of the order from which the appeal is taken. Where a decision has the effect of not granting a particular right, that decision, even if erroneous, does not threaten the [party’s] already existing rights.” (Internal quotation marks omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 448-49, 645 A.2d 978 (1994).

The defendants’ two bases for establishing the existence of a final judgment under Curdo include the court’s failure to require a bond prior to the issuance of the temporary injunction and the order requiring the city to vacate the volunteer fire station. General Statutes § 52-472 provides in relevant part that “a bond need not be required when, for good cause shown, the court or a judge is of the opinion that a temporary injunction ought to issue without bond.” “The purpose of the bond is to indemnify the defendants from any damages which they might sustain if the plaintiff failed to prosecute the action to effect. General Statutes 52-472.” Spiniello Construction Co. v. Manchester, 189 Conn. 539, 546, 456 A.2d 1199 (1983). The bond, therefore, is provisional on the court’s determination that such bond is required to indemnify the defendants; it does not “exist independently of the order from which the appeal is taken.” Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 448. The failure to require a bond, therefore, does not satisfy the second part of the Curdo test because the defendants still may recover damages they potentially may suffer as a result of the plaintiffs’ actions in the pending case. See Stamford v. Kovac, 228 Conn. 95, 102, 634 A.2d 897 (1993).

The defendants’ claim that the court order requiring the city to vacate the volunteer fire station constitutes a final judgment also is without merit. “The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits.” (Internal quotation marks omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn. App. 269, 270, 655 A.2d 814 (1995). The defendants’ right to occupy the firehouse, if such a right exists, will not be irretrievably lost, nor will the defendants be irreparably harmed unless they may immediately appeal. See Ruggiero v. Fuessenich, supra, 237 Conn. 347. The defendants have failed to satisfy the second part of the Curdo test and, thus, there is no final judgment. As a result, we lack jurisdiction over this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiffs are Peter Rustid, Donald Berg, Kevin Re, Robert Bennett, John Keenan, Ralph Nau, Gunther Schaller, James Chevalier, the Long Ridge Paid Drivers Association and Elizabeth Hasson. The plaintiff Gunther Schaller is not related to the author of this opinion.

       The Long Ridge Fire Company, also a defendant in this action, has not appealed from the court’s order. We therefore refer in this opinion to Dannel Malloy, John Byrne, James Haselkamp and the city of Stamford as the defendants.

       General Statutes § 31-118 provides in relevant part: “When any court or a judge thereof issues or denies a temporary injunction in a case involving or growing out of a labor dispute and either party is aggrieved by the decision of the court or judge upon any question of law arising therein, he may appeal from the final judgment of the court or of such judge to the Appellate Court . . . .”

       Because we conclude that this court lacks jurisdiction to hear this appeal, we will not address the merits of the defendants’ claims pertaining to the trial court’s allegedly improvident grant of the temporary injunction.

       General Statutes § 31-112 (c) provides: “The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment or concerning employment relations, or any controversy arising out of the respective interest of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”

       During a hearing on several motions before the court subsequent to its ruling granting, in part, the plaintiffs’ motion for injunctive relief, the court stated specifically, “I did not allow the injunction on the labor disagreement. ... I treated this as a charter problem . . . .”

       General Statutes § 31-115 provides in relevant part: “No court shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute . . . except after a finding of facts by the court, to the effect: (a) That unlawful acts have been threatened and will be committed by a person or persons unless such person or persons are restrained therefrom . . . (b) that substantial and irreparable injury to the complainant or his property will follow; (c) that as to each item of relief granted greater injury would be inflicted upon the complainant by the denial of relief than would be inflicted upon the defendants by the granting of relief; (d) that the complainant has no adequate remedy at law; and (e) that the public officers charged with the duty to protect the complainant’s property are unable or unwilling 1o furnish adequate protection. . . 1072 (1983); its analysis and conclusion are, at the very least, persuasive. The defendants therefore must find an alternative basis on which this court can sustain jurisdiction if the appeal is to be reviewed at all.


author: HENNESSY, J.

text:
    TOWN OF BERLIN v. NOBEL INSURANCE COMPANY
    (AC 19444)
    Spear, Hennessy and Daly, Js.

      Argued June 5
    officially released September 19, 2000

      E. Timothy Sullivan, Jr., with whom was Anthony V. Zeolla, for the appellant (plaintiff).

      Kathleen A. St. Onge, with whom, on the brief, were John B. Farley and Gregory R. Faulkner, for the appel-lee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, the town of Berlin, appeals from the judgment of the trial court denying its application for a permanent injunction to prohibit the defendant, the Nobel Insurance Company, from proceeding to arbitration in connection with a dispute concerning a contract to build a running track at Berlin High School. The plaintiff claims that the court abused its discretion by (1) determining that an arbitration clause was contained in the parties’ “takeover agreement,” under which the defendant agreed to complete the project, which had been left unfinished by the contractor, and (2) denying the application for a permanent injunction. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant, an insurance and bonding company, served as the surety for and guaranteed the performance of the Lomaglio Construction Company (Lomaglio), a contractor hired to construct the track at the school. Lomaglio, as the bond principal, provided performance bonds. In 1993, the defendant had posted the bonds, which named the plaintiff as the obligee. After Lomaglio failed to complete the work, the plaintiff, in October, 1993, terminated Lomaglio’s contract and looked to the defendant to complete the work. The defendant arranged for completion of the work. The plaintiff and the defendant then entered into a written takeover agreement in November, 1993, in which the defendant agreed to perform “all work and all other obligations of the contract [between the plaintiff and Lomaglio] called for under the said contract [not] presently completed or fulfilled, pursuant to the terms of the existing contract documents.” The takeover agreement incorporated by reference the original contract between the plaintiff and Lomaglio.

Lomaglio brought an action against the plaintiff for breach of contract while the defendant completed the work under the contract. Lomaglio never pursued its lawsuit, which was'subsequently dismissed for failure to prosecute with due diligence. The defendant eventually completed its obligations under the takeover agreement in accordance with the terms of the agreement.

The defendant, in June, 1997, commenced arbitration proceedings against the plaintiff before the American Arbitration Association, seeking damages for the plaintiffs alleged wrongful termination of Lomaglio, and its alleged failure to compensate Lomaglio and the defendant for additional work done under the contract. Thereafter, the plaintiff commenced an action against the defendant, seeking a judgment declaring that the disputes with the defendant were not subject to arbitration and a temporary injunction staying the arbitration proceedings pending the outcome of the declaratory judgment action. The court concluded that the takeover agreement contains an arbitration clause because it incorporated the contract between the plaintiff and Lomaglio. The court also denied the plaintiffs application for a permanent injunction. The plaintiff now appeals from that decision.

As a preliminary matter, the plaintiff argues to this court that the defendant has waived its right to arbitration because it is bound by the consequences of Lomag-lio’s having filed an action against the plaintiff. We disagree.

Although it is true that arbitration is a favored procedure in this jurisdiction, it also is true that an arbitration clause can be waived by the parties or by the one entitled to its benefit. Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 435, 324 A.2d 267 (1973). One may waive a right to arbitration by going to trial without insisting on the arbitration condition. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954). The plaintiff contends that when Lomaglio brought the breach of contract action against the plaintiff, it waived its right under the contract to arbitration, and that the defendant now is bound by that waiver because it incorporated into its takeover agreement by reference the wording of the contract between the plaintiff and Lomaglio.

The takeover agreement between the plaintiff and the defendant required the defendant to “take over and perform, or procure the performance of, all work . . . pursuant to the terms of the existing contract documents.” The defendant incorporated by reference the wording of the contract between the plaintiff and Lomaglio. The defendant did not, by doing so, become bound by the consequences of the fact that Lomaglio initiated a civil action against the plaintiff. The takeover agreement between the plaintiff and the defendant is a separate and distinct contract, and there were no actions taken by the defendant that would warrant our concluding that it waived its right to request that the dispute be placed before an arbitrator.

I

The plaintiff claims that the court improperly found that the takeover agreement incorporates the arbitration clause from the contract between the plaintiff and Lomaglio. The plaintiff claims that the takeover agreement with the defendant does not contain a written arbitration clause consistent with the requirement of General Statutes § 52-408. That statute requires that an agreement to settle a dispute by arbitration must be in writing and executed by the parties. The plaintiff points out that the takeover agreement does not specifically mention an arbitration clause, and that the document in which the arbitration clause is specifically mentioned was not executed by the plaintiff and the defendant, but instead by the plaintiff and Lomaglio.

“[ W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). Because a question of law is presented, review of the trial court’s ruling is plenary, and this court must determine whether the trial court’s conclusions are legally and logically correct, and whether they find support in the facts appearing in the record. Id.

It is undisputed that article 4.5.1 of the contract between the plaintiff and Lomaglio contains a written agreement to arbitrate. The contract provides: “Any controversy or claim arising out of or related to the contract, or the breach thereof, shall be settled by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof . . . .’’It also is undisputed that the takeover agreement entered into by the plaintiff and the defendant contains language incorporating the contract between the plaintiff and Lomaglio. The takeover agreement provides: “The surety undertakes and agrees to take over and perform, or procure the performance of, all work and all other obligations of the contract called for under the said contract [not] presently completed or fulfilled, pursuant to the terms of the existing contract documents. (A copy of said contract, all general conditions, supplementary conditions, plans and specifications, and all other contract documents are incorporated herein by reference as if set out at length.)”

“Where . . . the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be interpreted together as the agreement of the parties. . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” (Citations omitted; internal quotation marks omitted.) E &F Construction Co., Inc. v. Rissil Construction Associates, Inc., 181 Conn. 317, 319-20, 435 A.2d 343 (1980); see also Batter Building Materials Co. v. Kirschner, supra, 142 Conn. 7-8.

We conclude that the written agreement between the defendant and the plaintiff contains, by reference, a written arbitration clause consistent with the requirement of § 52-408. The takeover agreement plainly and unambiguously states that the defendant understood that it would perform the contract originally entered into by the plaintiff and Lomaglio “pursuant to the terms of the existing contract documents.” Moreover, the takeover agreement explicitly states, “A copy of said contract, all general conditions, supplementary conditions, plans and specifications and all other contract documents are incorporated herein by reference as if set out at length.” (Emphasis added.) Accordingly, we conclude that the court properly found that the takeover agreement incorporated the arbitration clause from the contract between the plaintiff and Lomaglio.

II

The plaintiff claims finally that the court improperly denied its application for a permanent injunction because without the injunction, the plaintiff will suffer irreparable harm, will be forced to arbitrate issues that it has not agreed to arbitrate and will have no adequate remedy at law. We disagree.

Our Supreme Court has set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny an application for an injunction. “ ‘A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.’ . . . Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion; Wehrhane v. Peyton, 134 Conn. 486, 498, 58 A.2d 698 (1948); the trial court’s decision must stand.” Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995).

The plaintiff cites White v. Kampner, 229 Conn. 465, 476, 641 A.2d 1381 (1994), and Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 6-8, 376 A.2d 399 (1977), for the proposition that it has a right to refuse to submit to arbitration and to compel a judicial determination of arbitral authority. In the case at hand, however, a judicial determination has been made: The parties have executed a contract in writing that contains an arbitration clause. A court of law has reviewed the contract between the parties and found that it clearly provides for arbitration. We conclude that the court did not base its decision on an erroneous statement of the law nor did it abuse its discretion in denying the application for a permanent injunction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is the successor in interest to the Atlantic Casualty and Fire Insurance Company, which in 19,93 posted performance bonds naming the plaintiff as the obligee and the Lomaglio Construction Company as the principal on a contract between the company and the plaintiff for the construction of a running track at Berlin High School. For purposes of clarity, we refer in this opinion to the Nobel Insurance Company as the defendant.

       General Statutes § 52-408 provides: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”


text:
    FIRST SELECTMAN OF THE TOWN OF RIDGEFIELD ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 19929)
    Hennessy, Zarella and Peters, Js.
    Argued May 3
    officially released September 19, 2000

      J. Allen Kerr, Jr., for the appellants (plaintiffs).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The plaintiffs appeal from the judgment of the trial court affirming in part an order of the defendant freedom of information commission (commission) directing the plaintiffs to release to the individual defendants the personnel evaluations of various nonunion employees of the town of Ridgefield (town). We affirm the judgment of the trial court.

The following facts before the trial court were undisputed. The defendants Scott Clark, Amy Kertesz and Michael Gates, all police officers of the town and members of the defendant Ridgefield Police Union, requested the performance evaluations of nonunion town employees. In response to the request for the evaluations, the town notified the individual employees, sixteen of whom filed timely objections to the disclosure of the evaluations. The town then refused to provide the records, and those requesting the records filed an appeal with the commission. The commission, after hearing the matter, ordered the town to provide the defendants with a copy of the personnel evaluations of the nonunion employees as requested. The plaintiffs appealed from the ruling of the commission to the trial court, which dismissed the appeal finding that the plaintiffs failed to prove that the disclosure of the contents of the appraisals would be “highly offensive to a reasonable person.”

The plaintiffs have appealed from the court’s judgment upholding the disclosure, claiming that the court improperly concluded that the disclosure of the requested personnel evaluation records would not constitute an invasion of privacy within the meaning of General Statutes § 1-210 (b) (2). We disagree.

The Freedom of Information Act “makes disclosure of public records the statutory norm.” Hartford v. Freedom of Information Commission, 201 Conn. 421, 430, 518 A.2d 49 (1986). Section 1-210 (b) (2) provides an exception that prohibits the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” General Statutes § 1-210 (b) (2). “The standard that determines whether a claim of exemption qualifies as ‘an invasion of privacy’ under § 1-19 (b) (2) [the predecessor to § 1-210 (b) (2)] is the test set forth in Perkins v. Freedom of Information Commission, [228 Conn. 158, 635 A.2d 783 (1993)].” Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 84, 698 A.2d 803 (1997). The invasion of personal privacy exception of § 1-210 (b) (2) “precludes disclosure . . . only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.” Perkins v. Freedom of Information Commission, supra, 175.

The court found that the plaintiffs demonstrated that the evaluations were conducted in confidential circumstances that made them “not legitimate subjects of public interest.” As to the remaining criteria for the exemption, that is, whether the disclosure would be highly offensive to a reasonable person, the court found that the plaintiffs failed to show that the disclosure of the information within the evaluations would be highly offensive.

The plaintiffs claim on appeal that despite the fact that the evaluations contain nothing of a “scandalous, embarrassing or humiliating nature,” they contain the customary give and take common to such evaluations given in confidence, and a breach of that confidence is highly objectionable to them. To support their position, the plaintiffs cite Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), in which our Supreme Court determined that the disclosure of internal personnel evaluations of a state’s attorney would constitute an invasion of privacy. In Chairman, the court based its decision in part on the fact that the disclosure of the evaluations “would carry significant potential for embarrassment”; id., 199-200; as the evaluations described “such personal matters as the plaintiffs ‘aptitude, attitude, basic competence . . . trustworthiness, ethics, [and] interpersonal relationships ....’” Id., 199.

In the present case, the plaintiffs have not put forth any evidence to establish that the disclosure of the evaluations would be highly offensive to a reasonable person. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. Indeed, the plaintiffs concede that nothing in the evaluations is embarrassing or humiliating. The plaintiffs have not met their burden under the statute and, therefore, they may not prevent disclosure of the requested evaluations by virtue of the exemption contained in § 1-210 (b) (2).

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to 1he named plaintiff, 1he first selectman of the town of Ridgefield, sixteen employees of the town were granted intervenor status by the defendant freedom of information commission. We refer to them collectively as the plaintiffs.

       The court affirmed the decision of the defendant freedom of information commission (commission) “except as it references and enters any order or finding relating to the alleged nondisclosure by the plaintiff town of evaluations of persons who did not object to their disclosure.” The case was remanded to the commission pursuant to General Statutes § 4-183 (k) “for deletion of such portions of its order.” The order of the commission upheld by the court, as to the disclosure of the evaluations of the objecting employees, is the sole subject of this appeal.

       In addition to the commission, Scott Clark, Amy Kertesz, Michael Gates and the Ridgefield Police Union are defendants in this matter.

       General Statutes § 1-214 provides in relevant part: “(b) Whenever apublic agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, 1he agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.
      “(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written
      objection from the employee concerned or the employee’s collective bargaining representative . . . .”

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . .

       We need not decide in this opinion whether the holding of Chairman v. Freedom of Information Commission, supra, 217 Conn. 193, was modified by the subsequent holding of Perkins v. Freedom of Information Commission, supra, 228 Conn. 158.