James Lucas et al. v. Zoning Commission of the Town of Harwinton et al. (2010)

MEMORANDUM OF DECISION

The plaintiffs, James Lucas and Leslie B. Lucas, bring the present appeal pursuant to General Statutes § 8-8 challenging the validity of the adoption of an amendment to the Harwinton Zoning Regulations by the defendant Zoning Commission of the Town of Harwinton (commission).¹  This case is particularly perplexing for a number of reasons.   First, for whatever reason, the amendment only targets one of four semi-comparable districts.   Further, there seemed to be only public opposition for the amendment and it was actually opposed by another town commission!  (The Harwinton Planning Commission.)   Add to the latter the fact that zoning Commission had four new commission members during the first time this amendment was explored.   Succinctly, the court obviously detects dissension in the town itself over this amendment.   Hopefully, the town will eventually come to terms with this issue as it is probably destined to reappear.

Nevertheless, the court must follow the law and now proceeds to do so.   The court need not reach the merits of the appeal, however, because the plaintiffs have failed to plead sufficient facts to establish that they are aggrieved by the actions of the commission.   Therefore, the appeal is dismissed for lack of subject matter jurisdiction.

The plaintiffs allege the following in the complaint:  The plaintiffs are the record owners of real property located at 119 Woodchuck Lane in Harwinton, Connecticut (property).   The property is located within a “Country Residential” zoning district (CR zone) as defined in the Harwinton Zoning Regulations (regulations).   The CR zone is one of four residential zoning districts found in the regulations, the others being:  “Town Residential,” “Lake Harwinton Charter” and “Lake Harwinton Area.”

On July 3, 2008, and July 11, 2008, the commission published a public notice that it intended to consider certain amendments to the regulations.   One such amendment (buildable area amendment) would add language to section 2.3 of the regulations as follows:  “Buildable Area-That amount of land on a lot (in a Country Residential zone) consisting of one contiguous acre of land excluding the following:  1) Land classified as inland wetlands and watercourses as defined in the Harwinton Inland Wetlands and Watercourses Regulations;  2) Land with naturally occurring pre-development slope equal to or greater than 25% as determined by a 10-foot vertical change of grade in a horizontal distance of 40 feet or less (based on field topography or USGS topography);  3) Land subject to public utility easements or rights of way with the exception of those public utility services directly servicing the lot.”   This new definition would apply only to property in a CR zone.

The commission held a public hearing on the amendments, including the buildable area amendment, during four separate sessions on July 14, July 28, August 11, and August 25, 2008.   The evidence and testimony presented, which included evidence proffered by the plaintiffs, was unanimously in opposition to the buildable area amendment.   The planning commission of the town of Harwinton (planning commission), which was also unanimously opposed to the amendment, presented evidence at the August 25, 2008 session.   On August 25, 2008, the commission voted to close the hearing.   On September 15, 2008, after the introduction of somewhat shaky expert testimony in favor of the amendment not presented during the hearing, the commission adopted the buildable area amendment.   On September 20, 2008, the commission published the legal notice of approval in the Register Citizen newspaper.

The plaintiffs commenced this appeal by service of process on September 30, 2008.   In the complaint, after alleging the above facts, the plaintiffs allege that they are aggrieved because the “restrictive ordinances” adopted by the commission apply only to property within a CR zone and the plaintiffs' property, which is within a CR zone, “is affected by the restrictions set forth in said regulations.”

The plaintiffs assert that the actions of the commission were arbitrary, illegal and in abuse of discretion because (1) the buildable area amendment applied only to one of the four residential zones, (2) the actions were not supported by evidence produced at the hearing, (3) the commission improperly considered evidence not presented at the hearing, (4) the commission usurped the power of the planning commission, (5) the buildable area amendment contravened the development plan of the town of Harwinton, (6) the actions constituted a taking of the plaintiffs' property and (7) the buildable area amendment arbitrarily and capriciously burdened owners of property in a CR zone in an attempt to promote open space on residential land.   The plaintiffs ask that the court reverse and vacate the actions of the commission.

The plaintiffs filed a memorandum of law on May 15, 2009, to which the commission responded with its own memorandum of law on June 26, 2009.   The court heard oral argument on the appeal on July 8, 2009.   Thereafter, the plaintiffs and the commission filed post-trial briefs on or about July 21, 2009, and August 18, 2009, respectively.   The commission contested, both in its memorandum of law and at oral argument, whether the plaintiffs are aggrieved parties.

General Statutes § 8-8(b) permits “any person aggrieved by any decision of a board ․ [to] take an appeal to the superior court for the judicial district in which the municipality is located ․” “It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).

“Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Buonigiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).  “The trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law ․ If the plaintiff fails to allege such facts, the appeal must be dismissed for lack of subject matter jurisdiction.”  Hendel's Investors Co. v. Zoning Board of Appeals, 62 Conn.App. 263, 271, 771 A.2d 182 (2001).   “[S]econd ․ [the plaintiff must prove] the truth of those factual allegations.”  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 193 n.13, 676 A.2d 831 (1996).

“Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001).  “Two broad yet distinct categories of aggrievement exist, classical and statutory ․” Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).   These two categories will be discussed in turn.

“Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest.”  Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001).

The plaintiffs argue that they are classically aggrieved in their memorandum of law.   They assert that they are owners of real property in Harwinton in a CR zone, and such property contains slopes in excess of twenty-five degrees.   They argue that this gives them a specific, personal and legal interest in the actions of the commission because the buildable area amendment will “in fact affect the property ․” The commission argues in its memorandum of law that the plaintiffs have failed to plead and prove both a specific personal and legal interest in the case and how such interest has been adversely affected.   As to the first prong of the test, the commission argues that 80% of Harwinton is within a CR zone and, therefore, the plaintiffs' interest as landowners within that zone is indistinguishable from the interest of the community as a whole.   Furthermore, the commission contends that the plaintiffs have not shown that the buildable area amendment affects a narrow subset of the CR zoned property that includes their property.   As to the second prong of the test, the commission argues that the plaintiffs have neither pleaded nor proven how the adoption of the buildable area amendment would negatively affect their property.

A plaintiff landowner pleads a specific, personal and legal interest if the plaintiff shows that his or her property is within the affected area and that said area is sufficiently limited in size such that it could be fairly said that the plaintiff's interest is distinct from that of the community as a whole.   See Harris v. Zoning Commission, 259 Conn. 402, 413-14, 788 A.2d 1239 (2002) (holding that plaintiffs demonstrated sufficient interest as owners of undeveloped land by showing that amendment restricting minimum lot area applied, practically, only to a limited area of the town, including plaintiffs' property);  Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 291-93 (holding that plaintiffs, who owned land capable of subdivision, demonstrated sufficient interest because amendment to subdivision regulations applied only to subdividable land, which court found to be “small area of the town's total acreage”).   Accordingly, it is essential to know which property is actually affected by the challenged amendment in order to properly analyze whether the first prong of the classical aggrievement test is met.

It is unclear whether the plaintiffs' property, even though it is in a CR zone, actually falls within the class of such property affected by the amendment, and whether such class of property is sufficiently limited.²  There is no indication in the complaint of how the regulations apply the concept of “buildable area” to anyone's property, including the plaintiffs', in any real sense other than a suggestion that the property affected would be in a CR zone.   Without an indication of how the regulations apply the definition, the court is unaware of what further conditions or restrictions, if any, limit the practical application of the concept of “buildable area.”   The court cannot conclude, from the facts alleged, either that the total affected property is sufficiently limited or that the plaintiffs' property is part of the affected class.   Therefore, the plaintiffs have failed to allege sufficient facts to meet the first prong of the classical aggrievement test.³

Even assuming, arguendo, that owning land within a CR zone, by itself, constitutes a sufficient interest, the plaintiffs have also failed to plead how any action of the commission has injuriously affected that interest.   The court cannot devine from the complaint how the addition of a definition of “buildable area” negatively affects the plaintiffs' property merely as owners of land in a CR zone.   There is only a blanket statement that the plaintiffs' property is affected by the buildable area amendment, which is by itself insufficient to allege a nexus between the enactment of the buildable area amendment and the plaintiffs' interest.   See Blau v. State Board of Education, 19 Conn.App. 428, 430, 562 A.2d 586, cert. denied, 212 Conn. 816, 565 A.2d 534 (1989) ( “[T]he mere statement that the party is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient for a court to determine aggrievement”).   Therefore, the plaintiffs have failed to plead sufficient facts to establish the second prong of the classical aggrievement test.

II

Statutory Aggrievement

“Statutory aggrievement exists by legislative fiat, which grants [plaintiffs] standing by virtue of a particular legislation, rather than by judicial analysis of the particular facts of the case.”  Cole v. Planning & Zoning Commission, 30 Conn.App. 511, 514-15, 620 A.2d 1324 (1993).   In the context of appeals under § 8-8(b), statutory standing is derived from subsection (a)(1) of § 8-8;  Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 296-97, which provides:  “ ‘Aggrieved person’ ․ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

Other than to state that they are statutorily aggrieved, the plaintiffs make no argument that they fit within the class of persons contemplated by § 8-8(a)(1).   The commission contends that the plaintiffs lack statutory standing because they have neither pleaded nor proven how the adoption of the buildable area amendment will specifically affect their property.

In order to fit within the class of persons contemplated by § 8-8(a)(1), the plaintiffs must plead sufficient facts to show that their property either abuts or is within 100 feet of property that the buildable area amendment affects.   See Cole v. Planning & Zoning Commission, 30 Conn.App. 515.   The buildable area amendment, in and of itself, merely creates a definition of “buildable area,” and the complaint does not show which property is actually affected.   Given this deficiency, the plaintiffs could not possibly have sufficiently pleaded that their property abuts or is within 100 feet of such property.   Therefore, the plaintiffs have failed to plead that they are statutorily aggrieved.⁴

The plaintiffs have failed to plead sufficient facts to demonstrate that they are either classically or statutorily aggrieved by the actions of the commission as a matter of law.   Accordingly, the court lacks subject matter jurisdiction over the appeal.   Therefore, the appeal is dismissed.

Gill, J.T.R.

FOOTNOTES

FN1. Other defendants named in the appeal include:  Clarence Caldwell, chairman of the commission;  Christine Neal, secretary of the commission;  Patricia Williamsen, clerk of the Town of Harwinton;  Peter Brazaitis;  Ronald P. Sherlock;  Herbert H. Etter, Jr.;   Nina A. Callahan;  Anne Marie Buoncore;  and John W. DiCarlo.   The final six defendants, according to paragraph two of the complaint, are members of the commission..  FN1. Other defendants named in the appeal include:  Clarence Caldwell, chairman of the commission;  Christine Neal, secretary of the commission;  Patricia Williamsen, clerk of the Town of Harwinton;  Peter Brazaitis;  Ronald P. Sherlock;  Herbert H. Etter, Jr.;   Nina A. Callahan;  Anne Marie Buoncore;  and John W. DiCarlo.   The final six defendants, according to paragraph two of the complaint, are members of the commission.

FN2. It is true that the Supreme Court has implicitly held that, where a restriction applies only to a specific zoning district, the ownership of property in that zoning district is sufficient to meet the first prong of the test.   See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 376 n.3, 610 A.2d 617 (1992);  see also Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 291 (relying on Timber Trails Corp, for proposition that property owners who own land in only zoning district affected by amendment have sufficient interest simply by owning land within that district).   In that case, however, it was clear that the amendment applied to all property within the zone in which the plaintiffs' land was situated.   See Timber Trails Corp. v. Planning & Zoning Commission, supra, 376.   In the present case, the court cannot tell from the complaint whether the buildable area amendment affects all CR zone property or merely a subset of such property..  FN2. It is true that the Supreme Court has implicitly held that, where a restriction applies only to a specific zoning district, the ownership of property in that zoning district is sufficient to meet the first prong of the test.   See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 376 n.3, 610 A.2d 617 (1992);  see also Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 291 (relying on Timber Trails Corp, for proposition that property owners who own land in only zoning district affected by amendment have sufficient interest simply by owning land within that district).   In that case, however, it was clear that the amendment applied to all property within the zone in which the plaintiffs' land was situated.   See Timber Trails Corp. v. Planning & Zoning Commission, supra, 376.   In the present case, the court cannot tell from the complaint whether the buildable area amendment affects all CR zone property or merely a subset of such property.

FN3. Another amendment considered and enacted along with the buildable area amendment added a footnote to section 5 of the regulations, which concerns the minimum required dimensions for lots in each zoning district.   For whatever reason, the plaintiffs did not plead the language of this amendment.   The language read as follows:  “Lots in a CR Zone created after October 6, 2008 shall contain at least one contiguous acre of Buildable Area as defined in these Regulations.   This requirement shall not prevent the construction of permitted buildings or structures in a CR Zone on a lot created before this date provided that such construction complies with Section 6.3 (Existing Lots) and Section 12 (Non-Conforming Situations) of these Regulations. (effective 10/6/08).”   This amendment gave practical effect to the addition of the concept of “buildable area.”   Because the language of this amendment was not pleaded in the complaint it cannot be considered for purposes of determining whether aggrievement has been sufficiently pleaded.   Even if the language were included, the plaintiffs would have failed to plead that they owned a lot that was created after that date or that, for example, they intended to create new lots and that the amendment would reduce the number of lots they could create.   See Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 290-95 (finding aggrievement where there was testimony that the plaintiffs planned to subdivide property and that a new restriction on minimum lot area would reduce the number of potential lots they could create)..  FN3. Another amendment considered and enacted along with the buildable area amendment added a footnote to section 5 of the regulations, which concerns the minimum required dimensions for lots in each zoning district.   For whatever reason, the plaintiffs did not plead the language of this amendment.   The language read as follows:  “Lots in a CR Zone created after October 6, 2008 shall contain at least one contiguous acre of Buildable Area as defined in these Regulations.   This requirement shall not prevent the construction of permitted buildings or structures in a CR Zone on a lot created before this date provided that such construction complies with Section 6.3 (Existing Lots) and Section 12 (Non-Conforming Situations) of these Regulations. (effective 10/6/08).”   This amendment gave practical effect to the addition of the concept of “buildable area.”   Because the language of this amendment was not pleaded in the complaint it cannot be considered for purposes of determining whether aggrievement has been sufficiently pleaded.   Even if the language were included, the plaintiffs would have failed to plead that they owned a lot that was created after that date or that, for example, they intended to create new lots and that the amendment would reduce the number of lots they could create.   See Lewis v. Planning & Zoning Commission, supra, 62 Conn.App. 290-95 (finding aggrievement where there was testimony that the plaintiffs planned to subdivide property and that a new restriction on minimum lot area would reduce the number of potential lots they could create).

FN4. If the plaintiffs had included in the complaint the amendment that gave the buildable area amendment practical application;  see footnote 3;  the plaintiffs still would have failed to plead statutory aggrievement.   Again, the buildable area amendment only affects lots created after October 6, 2008.   The plaintiffs have not pleaded that their property abuts or is within 100 feet of a lot in a CR zone created after that date..  FN4. If the plaintiffs had included in the complaint the amendment that gave the buildable area amendment practical application;  see footnote 3;  the plaintiffs still would have failed to plead statutory aggrievement.   Again, the buildable area amendment only affects lots created after October 6, 2008.   The plaintiffs have not pleaded that their property abuts or is within 100 feet of a lot in a CR zone created after that date.

Gill, Charles D., J.T.R.