Vivian Simons v. Weston Planning and Zoning Commission (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 111), MEMORANDUM OF DECISION RE MOTION TO DISMISS (110)

This land use appeal presents the question of whether a plaintiff is statutorily aggrieved when, subsequent to her appeal of the decision of a planning and zoning commission, she transfers her complete interest in the property to a limited liability company of which she is the sole managing member and in which she has a 100 percent interest.   The plaintiff, in her individual capacity, filed these appeals from the decisions of the defendant, the Weston Planning and Zoning Commission, (the defendant Commission) approving applications for modification of a previously approved subdivision application.   The plaintiff alleges that as the landowner of property that abuts the property which is the subject of the application, she is aggrieved by the defendant's decision.

The defendant Commission filed motions to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff can no longer establish that she is aggrieved.   Specifically, the defendant argues that the plaintiff is not aggrieved because she transferred all of her title and interest in the abutting property to Mei Li Shan, LLC by quitclaim deed dated February 27, 2012.

The facts material to the motions to dismiss are relatively straight forward.   The plaintiff had previously formed a limited liability company, Mei Li Shan, LLC (the LLC).  The Articles of Organization are dated and were filed on September 4, 2008.   The purpose of the LLC as set forth in the Articles of Organization is to “engage in any lawful activity.”   The plaintiff, who testified at the hearing, is the sole owner of the LLC. She is also the statutory agent for the LLC and lists her residence and business address as other than that of the abutting property.   By quit claim deed dated February 27, 2012 and recorded in the Weston Land Records on February 28, 2012, the plaintiff did “remise release and forever Quit claim unto [Mei Li Shan, LLC] and [its] heirs, successors and assigns forever, all right, title interest, claim and demand whatsoever that [plaintiff] has as ought to have” in the abutting property.   The plaintiff does not occupy the property.   She testified that the property is leased to a tenant for a term of 3 years, approximately 2 of which have passed.   The plaintiff did not know whether she, or the LLC, was identified as the lessor in the lease.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․” (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.   Practice Book § 10–31(a).”  (Internal quotation marks omitted.)  Id., 213.

In support of its motions, the defendant makes the following arguments.   In an administrative appeal, a plaintiff must plead and prove aggrievement, and the appeal must be decided based on the pleadings before the court.   The plaintiff alleges statutory aggrievement solely based on her status as an abutting property, and she cannot now allege classical aggrievement.   The plaintiff's conveyance of her property after appealing but before trial resulted in loss of aggrievement.   The plaintiff should not be able to enjoy the rights of a property owner for the purpose of pursuing this appeal while being exempt from personal liability for the property by transferring her interest in it to a limited liability company.

In response, the plaintiff argues the following.   Although the defendant is correct that the conveyance of any interest in abutting property after an appeal is taken but before trial usually results in loss of aggrievement to maintain an appeal, there are exceptions to that principle, one of which exists in this case.   The plaintiff conveyed the property to the LLC only for the limited purpose of placing title to the property in the name of an LLC that is controlled by the plaintiff and of which she is the sole member.   The plaintiff retains an interest in the abutting property as the sole member of the LLC, which now has legal title on the land records.   A member may have an ownership interest in an LLC and be the ultimate beneficiary of the assets of the LLC. There is a direct relationship between the plaintiff who owned the abutting property when the appeal was taken—and thus was statutorily aggrieved—and the LLC. In order to meet the aggrievement test, a plaintiff does not necessarily need to have an ownership interest in real property.

General Statutes § 8–8(b) provides in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․” (Emphasis added.)  Section 8–8(a)(1) defines an “aggrieved person” as “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.”  “[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.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 555, 23 A.3d 1176 (2011).  “The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8–8(a)(1) ․” Mather v. Deep River Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 09 4010638 (December 16, 2010, Wiese, J.).  “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.   Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 555.  “Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved.”  (Internal quotation marks omitted.)  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).

In this case, the plaintiff is claiming statutory aggrievement under § 8–8 by virtue of being an abutting landowner to the property that is the subject of the application for a subdivision modification.   To the extent that the plaintiff still maintained an ownership interest in the abutting property, she would be statutorily aggrieved.   Nevertheless, the plaintiff transferred all of her interest in the property to the LLC subsequent to her filing an appeal but prior to trial, giving rise to the issue of whether she is still statutorily aggrieved.

In Nichols v. Planning and Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. 76834 (October 6, 1987, Healey, J.) (2 C.S.C.R. 1128), the plaintiffs appealed from a decision of the planning and zoning commission approving a re-subdivision.   The plaintiffs alleged statutory aggrievement pursuant to § 8–8 as well as classical aggrievement.   Subsequent to their appeal, the plaintiffs transferred their interest in the property to a third party.   The third party moved to join the plaintiff's action, and the defendants moved to dismiss and objected to the third party's motion to join.   In granting the motion to dismiss, the court held:  “To maintain an appeal such as this the plaintiffs must have standing at the time of taking the appeal, must sustain that standing throughout the course of the appeal, and must be able to obtain some practical benefit or relief.”  Id. The court stated that because the plaintiffs sold their property, they lost standing to bring the appeal on the basis of statutory or classical aggrievement.  Id. The court also denied the third party's motion to join, reasoning that they had no standing at the time the appeal was taken, and that because the plaintiffs' action had been dismissed, there was no action pending that the third party could join.  Id.

Furthermore, in M.K. Investment Corp. v. Branford Planning and Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 000439058 (November 22, 2000, Downey, J.), the plaintiff appealed the decision of the planning and zoning commission to approve the defendant's application for a special exception and site plan approval to operate a gasoline station on property owned by the defendant.   The plaintiff claimed statutory aggrievement.   Subsequent to the appeal, the plaintiff filed a motion to substitute party plaintiffs, indicating that the original named plaintiff was no longer the record owner of the property.   The defendant objected to that motion and also filed a motion to dismiss for lack of aggrievement, arguing that the named plaintiff lacked standing to maintain the present appeal, having conveyed all of its right, title and interest in the property.   In ruling on the motion to dismiss, the court first agreed with the defendant that the plaintiff had conveyed all of its right, title and interest in its property to a successor.   The court held:  “The sole reason offered in support of [the motion to substitute party plaintiffs] was, ‘the original named plaintiff ․ is no longer the record owner of the property owned at the time this action was commenced.’  ․ This is not a basis for granting said motion;  rather it is a basis only for finding that the [original named plaintiff] ․ no longer has standing to pursue this appeal.”  (Citation omitted.)  Id. The court thus granted the defendant's motion to dismiss, concluding:  “Having relinquished all right, title and interest in [the property], the [original named plaintiff] ․ has no standing to pursue this appeal.”  Id.

Finally, in D.S. Associates v. Planning and Zoning Commission, 27 Conn.App. 508, 607 A.2d 455 (1992), the partnership of D.S. Associates filed an application for a subdivision of land.   The application listed D.S. Associates as the owner of record.   Prior to the filing of the application, D.S. Associates conveyed title in the property to Twin Pines, the shareholders of which are also the partners of D.S. Associates.   After the planning and zoning commission denied the application, D.S. Associates and Twin Pines appealed.   “The trial court found that D.S. Associates was not aggrieved since it had no interest in the property either at the time of or at any time subsequent to the application.   The trial court further found that Twin Pines was an aggrieved party as the owner of record, but that the commission lacked subject matter jurisdiction to consider the application because the zoning regulations require an owner or an authorized agent of the owner to apply for the subdivision approval.”  Id., 510–11.   In affirming the judgment of the trial court, the court emphasized the fact that partnerships and corporations are separate legal entities.  “Even though the shareholders of the corporation and the partners are all the same, the partnership and the corporation have a separate legal identity and are separate persons under the law ․ If they adopt the corporate form, with the corporate shield extended over them to protect them against personal liability, they cease to be partners and have only the rights, duties and obligations of stockholders.   They cannot be partners inter sese and a corporation as to the rest of the world.”  (Citation omitted, internal quotation marks omitted.)  Id., 512.   The court thus concluded that D.S. Associates “had no interest in the property either at the time of or subsequent to the application, and Twin Pines was at no time either a party to or a participant in the proceedings before the commission.”  Id. See also Meages v. The Township of Barnards, 73 A.2d 540 (New Jersey 1950).

In the present case, the plaintiff was the record owner of the property at the time the appeals were taken.   The plaintiff testified at the short calendar that she conveyed her interest in the property to the LLC to protect her family from liability arising from the property.   Accordingly, the plaintiff no longer has any right, title or interest in the property.   Therefore, the court finds that the plaintiff is not aggrieved.   The fact that the plaintiff is the sole managing member of the LLC is immaterial, as an LLC is a separate legal entity from its members.   See General Statutes § 34–134.¹  General Statutes § 34–187(a) ² is not applicable to this matter because the plaintiff did not bring suit in her name on behalf of, or as the agent for, the LLC;  she brought suit solely in her individual capacity.   Although the plaintiff moved to cite in the LLC as an additional party on May 1, 2012, this does not save the plaintiff's appeal.   The court lacks subject matter jurisdiction over the plaintiff's appeal since she is not statutorily aggrieved, there is no pending appeal that the LLC could join.

The plaintiffs reliance on Primerica v. Planning and Zoning Commission, 211 Conn. 85, 558 A.2d 646 (1989) is misplaced.   First, the plaintiff in that case retained four substantial interests in the property at issue even after it sold the property to a third party.   Specifically, the plaintiff remained a lessee and rent guarantor, and held a right of first refusal and a purchase money mortgage on the property.  Id., 93–94.   Accordingly, Primerica does not provide any support for the plaintiff's position.

Loew v. Falsey, 144 Conn. 67, 127 A.2d 67 (1956) is also inapposite to the present case.   First, the case was decided before the concept of limited liability companies was even codified in Connecticut.   Moreover, although the court held that “the equitable owner may be deemed agent for the holder of the legal title”;  id., 74;  the court made this statement while addressing the issue of whether the plaintiff substantially complied with the building code of New Haven when it omitted the “incorporated” from its name on the application for a building permit.   The issue before the court was not whether any party was aggrieved, and the court never employed an aggrievement analysis.   Therefore, Loew does not aid the plaintiff.

Finally, the plaintiff's reliance on Straw Pond Associates, LLC v. Planning and Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 05 4005175 (February 3, 2012, Taylor, J.) is misplaced.   In that case, S.P. Holdings, S.P. Real Estate and S.P. Associates claimed that they were aggrieved by the decision of the planning and zoning commission to amend the residential district senior housing regulations, and they along with CUDA filed an appeal.   Subsequent to the filing of the appeal, the following real estate transactions occurred.   CUDA, the original owner of real property, transferred title to the property to S.P. Holdings, instead of to S.P. Real Estate as CUDA originally contracted to do.   Moreover, S.P. Associates transferred its existing contractual interest in an abutting parcel of land to S.P. Holdings, instead of to S.P. Real Estate as S.P. Associates originally contracted to do.   S.P. Real Estate and S.P. Associates are the members of S.P. Holdings.   In light of these subsequent real estate transactions, the question of aggrievement arose.   The parties agreed that CUDA no longer had standing as a plaintiff.   The court noted that “[a]lthough S.P. Real Estate was originally intended to be the owner of both parcels, S.P. Holdings is now the owner of [the parcel that originally was owned by CUDA] and is the intended owner of the other.”  Id. The court first dealt with the issue of whether S.P. Holdings was aggrieved, and concluded that it was both statutorily and classically aggrieved.   The court next addressed, in dicta,³ whether S.P. Real Estate and S.P. Associates were aggrieved.   The court concluded that both entities were classically aggrieved due to their contractual interests in the subject properties.   Significantly, however, the court stressed that its findings were “limited to classical aggrievement” and specifically declined to analyze whether S.P. Real Estate and S.P. Associates were statutorily aggrieved.  “The court need not address the more nuanced question of statutory aggrievement under the particular facts of this case ․” Id.

In the case at bar, the plaintiff is not a title holder, owner, occupant, lessee or contract purchaser of the abutting property.   She chose to convey her ownership interest to an existing legal entity for her own purposes.   While she maintains an interest in that entity she maintains no interest in the property.   Accordingly, the plaintiff has no standing to pursue this appeal.

The appeal is dismissed.

SO ORDERED.

GENUARIO, J.

FOOTNOTES

FN1. Section 34–134 provides:  “A member or manager of a limited liability company is not a property party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement.”.  FN1. Section 34–134 provides:  “A member or manager of a limited liability company is not a property party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement.”

FN2. Section 34–187(a) provides in relevant part:  “[S]uit on behalf of the limited liability company may be brought in the name of the limited liability company by:  (1) Any member or members of a limited liability company ․ or (2) any manager or managers of a limited liability company ․” (Emphasis added.).  FN2. Section 34–187(a) provides in relevant part:  “[S]uit on behalf of the limited liability company may be brought in the name of the limited liability company by:  (1) Any member or members of a limited liability company ․ or (2) any manager or managers of a limited liability company ․” (Emphasis added.)

FN3. The court explicitly acknowledged that the issue of whether S.P. Real Estate and S.P. Associates were aggrieved “may be moot under the court's analysis of S.P. Holding's standing in its own right.”  Id..  FN3. The court explicitly acknowledged that the issue of whether S.P. Real Estate and S.P. Associates were aggrieved “may be moot under the court's analysis of S.P. Holding's standing in its own right.”  Id.

Genuario, Robert L., J.