Michael Montanero v. ZBA (2012)

MEMORANDUM OF DECISION

The plaintiff, Michael Montanero, appeals from the decision of the defendant, the Zoning Board of Appeals for the city of Shelton (board), which affirmed the decision of the Shelton Planning and Zoning Commission (commission) denying his applications for certificates of zoning compliance.   The subject property is located at 60–64 Huntington Street in Shelton.   The plaintiff submitted two applications, one for 60 Huntington Street and one for 64 Huntington Street.   He commenced two separate administrative appeals, one for each denial.   The two appeals were argued separately, and the court will issue two separate decisions.

Before the court is the appeal with the docket number CV 06 4005686.   This appeal was commenced January 18, 2006.   In his third amended appeal dated July 18, 2008, the plaintiff alleges that the board's decision was illegal, arbitrary and an abuse of discretion in light of the following facts.   He applied for a certificate of zoning compliance for a delicatessen on that portion of the property known as 60 Huntington Street, which is a permitted use in the zone.   There was no substantial evidence in the record to support the board's decision;  there was substantial evidence that the proposed use was comparable both to prior uses of the property and in the general vicinity;  and the denial of the application was not in accordance with the city's own regulations.

The plaintiff argues in his brief that his application was improperly denied on the ground that he failed to include a High Traffic Generator application with the application for zoning compliance.   He argues further that the commission's decision was made improperly after the fourteen-day deadline established in its own regulation, and, accordingly, it lacked the authority to deny his application.   At the hearing, the plaintiff highlighted the arbitrary and capricious manner by which his application was denied, noting that other applications were granted without a second hearing and that he was singled out for special treatment.

In response, in its brief, the board argues that because the plaintiff proposed a change from the former, retail use of that property to a deli, the regulations required the High Traffic Generator application and that, because this was a special exception application, the commission had sixty-five days (and not fourteen days) to act.¹  Accordingly, it maintains that the board acted correctly in upholding the commission's denial of the application.

The court heard the parties' arguments and received evidence on December 7, 2011.   The court ordered and, on January 17, 2012, received a transcript of the hearing, which it has reviewed.

Before the court can address the merits of the plaintiff's appeal, it must resolve the question of whether the plaintiff has pleaded and proved aggrievement.  “[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citation omitted;  internal quotation marks omitted.)   Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664–65, 899 A.2d 26 (2006).  “Aggrievement presents a question of fact for the trial court.”   (Internal quotation marks omitted.)  Id., 665.  “[T]he party alleging aggrievement bears the burden of proving it ․ [B]ecause aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict.”  (Citation omitted;  internal quotation marks omitted.)  JZ, Inc., Dunkin Donuts v. Planning & Zoning Commission, 119 Conn.App. 243, 247, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).

“In order to prevail on the issue of aggrievement, [t]he trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations.”  (Internal quotation marks omitted.)  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542, 833 A.2d 883 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

“The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

The plaintiff alleges the following relevant facts in his third amended appeal.  “The plaintiff is the sole member of NHSC Leechberg, LLC,² a limited liability company which is the owner of [the property] ․ The plaintiff is the applicant for the certificate of zoning compliance and the appellant to the defendant and such actions were made with the knowledge and consent of the owner of the property ․ The plaintiff is aggrieved by the [zoning board of appeal's] decision [to uphold the planning and zoning's commission to deny the application] in that he is the applicant and was acting with the permission of the owner of the property involved in the application ․ and has been denied a use of the property permitted under the [applicable] zoning regulations ․”

At the defendant's request, the court took judicial notice of the uncontroverted evidence offered at an earlier hearing with respect to the other appeal concerning the subject property.  (See Tr. December 7, 2011, pp. 39–40.)   The plaintiff executed a quitclaim deed as the member manager of “NSHE Leechburg, LLC” transferring the subject property to “60–64 Huntington Street, LLC” on June 16, 2008.   This deed was recorded on the Shelton land records on August 5, 2008.   The defendant submitted further evidence that the principal member of 60–64 Huntington Street, LLC, is Amy Montanero, and not the plaintiff.   The defendant maintains that the plaintiff is, therefore, not aggrieved.

The plaintiff argues in response that the owner of the property is irrelevant.   He maintains that he is aggrieved because he applied for the certificate, and the application was denied.   He argues that he is the user of the property.  (See Tr. December 7, 2011, p. 46.)

The law is clear that “mere status ․ as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review”;  Bakelaar v. West Haven, 193 Conn. 59, 66, 475 A.2d 283 (1984);  and “the mere denial of an application does not establish aggrievement.”  (Internal quotation marks omitted.)   Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 703.  “[S]tanding to file [a] zoning application, which is subsequently denied, does not alone give a party the aggrievement necessary to pursue an appeal of that decision in the courts.”  Trimar Equities, LLC v. Planning & Zoning Board, 66 Conn.App. 631, 637, 785 A.2d 619 (2001).

It is well established that, not only must the plaintiff have standing as an aggrieved person at the commencement of an administrative appeal, he must remain aggrieved throughout the course of the appeal.  Craig v. Maher, 174 Conn. 8, 9, 381 A.2d 531 (1977) (party must “sustain that interest throughout the course of the appeal”).  “[I]n order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal ․ It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the commission.”  (Citations omitted;  emphasis added.)  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989).   See JZ, Inc., Dunkin Donuts v. Planning & Zoning Commission, supra, 119 Conn.App. 247–48 (dismissing appeal when plaintiff failed to prove it had “a specific, personal and legal interest in the commission's decision” denying zoning applications because purchase and sale agreement expired);  Goldfeld v. Planning & Zoning Commission, 3 Conn.App. 172, 177, 486 A.2d 646 (1985) (dismissing appeal when plaintiff's interest in property interrupted for significant time during pendency of appeal and had terminated before judgment was rendered).

The court finds that the plaintiff has failed to prove aggrievement.   The plaintiff's allegations, had they been proven, may have established that he was aggrieved when this appeal was commenced in January 2006.   The evidence before the court demonstrates that NSHE Leechburg, LLC, transferred its interest to 60–64 Huntington Street, LLC, in 2008, during the pendency of this appeal.³  There is no evidence that the plaintiff has any recognized legal interest in the subject property.   See Richards v. Planning & Zoning Commission, 170 Conn. 318, 323–24, 365 A.2d 1130 (1976).   Thus, the plaintiff has failed in his burden to demonstrate that he has a continued specific, personal and legal interest in the subject matter of this appeal.

Because the court has found that the plaintiff is not aggrieved, the court does not have jurisdiction over the subject matter of this appeal.   The appeal is dismissed.

The Court

John W. Moran, J.T.R.

FOOTNOTES

FN1. The plaintiff responded to this argument at oral argument.  (See, e.g., Tr. December 7, 2011, pp. 25–28.).  FN1. The plaintiff responded to this argument at oral argument.  (See, e.g., Tr. December 7, 2011, pp. 25–28.)

FN2. The amended appeal refers to “NHSC Leechberg, LLC.” Other documents in the record refer to “NSHE Leechburg, LLC.” The court has no way of knowing whether they are the same entity and/or whether the differences can be ascribed to typographical errors.   Whether they are, in fact, the same entity is immaterial to the resolution of this appeal..  FN2. The amended appeal refers to “NHSC Leechberg, LLC.” Other documents in the record refer to “NSHE Leechburg, LLC.” The court has no way of knowing whether they are the same entity and/or whether the differences can be ascribed to typographical errors.   Whether they are, in fact, the same entity is immaterial to the resolution of this appeal.

FN3. The court notes that there has been no motion to substitute 60–64 Huntington Street, LLC, as the party plaintiff.   Compare with Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 704–05 (court granted motion to substitute as plaintiff purchaser of property;  purchaser had standing to proceed with appeals)..  FN3. The court notes that there has been no motion to substitute 60–64 Huntington Street, LLC, as the party plaintiff.   Compare with Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 704–05 (court granted motion to substitute as plaintiff purchaser of property;  purchaser had standing to proceed with appeals).

Moran, John W., J.T.R.