RAS LLC v. Planning and Zoning Commission of Town of Weston (2013)

MEMORANDUM OF DECISION

I

The plaintiffs, RAS Realty, LLC (RAS) and EBS Realty, LLC (EBS), limited liability corporations (collectively, the LLCs), have brought this suit against the planning and zoning commission of the town of Weston (commission), challenging its June 18, 2012 decision to deny a May 17, 2012 application made by the managing member of both LLCs, Edward B. Strauss, M.D., to revoke a 2009 subdivision approval.   RAS acquired lot 9A, as shown on map # 2778 (Return of Record (ROR), 6) in the Weston land records, on April 14, 2012 from Victoria R. Fash, Trustee of the Victoria R. Fash Living Trust (trust).   EBS acquired lot 8A, also shown on map # 2778, on April 14, 2012 from Victoria R. Fash, Trustee.   RAS and EBS claim that the prior subdivision concerning their two lots was not necessary and that the subdivision only adjusted a boundary line between the two lots.   The matter was transferred to this docket on October 25, 2012 and, after briefing, trial occurred on April 4, 2013.

On April 13, 2012, Fash commenced the process through her written request to have the subdivision revoked.  (ROR, 6d.)   Notwithstanding the April 14, 2012 deeds, on May 17, 2012, Strauss filed the application as “contract purchaser,” indicating that the trust was the owner.  (ROR, 6.) Strauss appeared at the commission's initial May 21, 2012 meeting without mentioning the plaintiff LLCs. At the June 18, 2012 public hearing, Strauss counsel indicated that he was appearing on behalf of Strauss;  he never mentioned the LLCs which had purchased from Fash. (ROR, 37, p. 1.) Stephan Grozinger, a commissioner, raised the discrepancy noting that the grantees were the LLCs and not Strauss.  (ROR, 37, p. 3.) Strauss' attorney further indicated that the April deeds had just been recorded on June 15, 2012.  (ROR, 37, p. 1.)

The commission maintains that the LLCs do not have standing to pursue this appeal because they were not the applicants before the commission, nor have they followed § 2.4.1 of the commission's regulations.¹

II

A.

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 ․” “One who claims to be aggrieved in a zoning matter must demonstrate that he has a specific, personal and legal interest in the subject matter of the decision.   To have standing to apply for a permit, a nonowner must have substantial interests in the subject property ․ The question of aggrievement is essentially one of standing.”  (Citations omitted;  internal quotation marks omitted.)  Gladysz v. Planning & Zoning Commission, 57 Conn.App. 797, 804, 750 A.2d 507 (2000), rev'd on other grounds, 256 Conn. 249, 773 A.2d 300 (2001).

B.

The commission argues that at the time the present application was filed, either the trust was the record owner of the property, and it did not provide a letter of authorization for Strauss, or the LLCs were the owners, and again Strauss had no letter of authorization.   Strauss alleges that he is the sole managing member of the LLCs;  the commission focuses on the fact that they are separate legal entities.

Under Connecticut law, a party applying to a planning and zoning commission must have a sufficient interest in the subject property to have standing to apply.  Richards v. Planning & Zoning Commission, 170 Conn. 318, 321–22, 365 A.2d 1130 (1976);  Hayes Family Ltd. Partnership v. Planning & Zoning Commission, 98 Conn.App. 213, 219–20, 907 A.2d 1235 (2006), cert. denied, 281 Conn. 903, 916 A.2d 44 (2007) (“[T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  [Citations omitted;  internal quotation marks omitted.] ).  “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded ․ Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.”  (Citation omitted;  internal quotation marks omitted.)  Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995).   Strauss cites Richards v. Planning & Zoning Commission, supra, 170 Conn. 321–22, as authority for the principle that others than the owner may apply for a land use application.   In Richards, the issue was whether the board of education, which did not own the land for which it sought special permit to store school buses, was a proper party to seek the permit, as opposed to the town which actually owned the land.   Having found that the land was purchased by the town for school purposes and that the proposed use was, while a municipal use, certainly related to school purposes, that the town did not object and that the regulations did not require the owner to make an application, the board was deemed to have a substantial interest in how the property would be used.  Id., 325–7.   That court stated:  “In Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380, we recognized that [t]he general rule, which applies in the absence of a specific provision to the contrary, is that one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use.”  (Internal quotation marks omitted.)  Richards v. Planning & Zoning Commission, supra, 170 Conn. 322.   It went on:  “It is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance.   The decisions have not been based primarily on whether a particular applicant could properly be characterized as an optionee or a lessee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property.   Whether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination.”  Id., 323.   The commission maintains that Richards does not control because not only is there a specific provision in its regulations that applies, but also that Strauss misrepresented that he was the entity that purchased the property.

In D.S. Associates v. Planning & Zoning Commission, 27 Conn.App. 508, 511, 607 A.2d 455 (1992), the court analyzed whether an owner of property at the time a zoning application was made that was clearly aggrieved had standing to pursue an appeal.   In that case, D.S. Associates was a partnership of four partners who were the shareholders of Twin Pines Development Corporation (Twin Pines);  D.S. Associates and Twin Pines were the plaintiffs in the appeal.   D.S. Associates, acting through its agent Jones, applied for a zoning permit listing itself as the owner, yet one year prior, it had transferred the property to Twin Pines.   Twin Pines was never mentioned in any way during the administrative proceedings.   The court noted:  “This is one of those rare cases in which the plaintiff is aggrieved but does not have standing ․ D.S. Associates is a partnership, Twin Pines is a corporation.   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., 511–12.

The court then added:  “Twin Pines, a separate legal entity, did not apply for a subdivision of the property, nor did it authorize an agent to do so.   Where zoning ordinances have not specifically required owners to apply or to authorize the application, this court has sustained the issuance of permits to persons who were not owners but who did have substantial interests in the subject property.   In the present case, the commission must prevail on both grounds.   The zoning regulations did specifically require the property owner or its agent to apply for subdivision approval.   Consequently, Twin Pines' failure to comply with the regulations cannot be remedied by their having a substantial interest in the property.   Further, the applicant, 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.”  (Citation omitted;  internal quotation marks omitted.)  Id., 512.   Accord Gladysz v. Planning & Zoning Commission, supra, 57 Conn.App. 797.   See also Simons v. Planning & Zoning Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket Nos. CV 10 5013463 and CV 10 5013515 (November 30, 2012, Genuario, J.) (55 Conn. L. Rptr. 124) (“[T]he 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 present case is no different from D.S. Associates.   Strauss argues that as the deeds were not recorded until June 15, 2012, and as he was the only member of the LLCs, he was acting as their agent or, perhaps, as Fash's agent.   The latter argument is curious as the deeds from Fash to RAS and EBS were both dated April 14, 2012, one day after Fash's letter and one month before Strauss filed the application.   Moreover, Strauss apparently took delivery of the deeds on that day.  (ROR, 36, p. 2;  exh. 1, 2.) See Costello v. Costello, 136 Conn. 611, 73 A.2d 333 (1950).   Citing General Statutes § 34–130(a) ² and § 34–187(a),³ he argues that he clearly had the right to appear on the LLCs' behalf as their agent.   In responding to the claim that he did not comply with § 2.4.1 of the regulations, he disputes, in his brief, the section's validity, arguing that there is no statutory authority for such a regulation.⁴  He also argued that it can only apply to a subdivision application and that this proceeding did not involve a subdivision application but rather a request to cancel.   He trivializes the commission's claim, maintaining that it is simply form over substance.   In one sense, of course, his argument seems to have merit.   As sole owner of the LLCs, and as he has statutory authority under § 34–130(a) to bind the company and under § 34–187 to sue on behalf of the company, surely Strauss should be able to act on their behalf in front of the commission.   Yet this argument glosses over two important matters.   First, Strauss was never the owner.  (ROR, 37, p. 3–4.)   Although he listed himself as contract purchaser, there is nothing in the record to support Strauss' position.   The argument ignores the finding in D.S. Associates, supra, 27 Conn.App. 512, that the LLCs have separate legal existence.   Indeed, Strauss testified at the hearing herein that he set up the LLCs precisely for this purpose:  to avoid liability issues.   Second, to suggest that the commission's regulation § 2.4.1 was ultra vires because General Statutes § 8–25 does not specifically mention or authorize a commission to ask that the application be filed by or with the consent of the owner is fatuous.   Strauss certainly cannot mean that in requiring an application for any person, firm or corporation, a commission cannot ask who or what is filing the application and if it is not the owner, whether it is with the owner's consent.   He recognized at the hearing that not just anyone can file an application to subdivide another's land.

As noted in D.S. Associates, supra, 27 Conn.App. 511, “[t]his is one of those rare cases in which the plaintiff is aggrieved but does not have standing.”   The LLCs, as owners, could surely have applied, or the LLCs could have authorized Strauss to act on their behalf.   Maybe they will in the future.   They certainly did not in the past.   But here, at every step, the plaintiffs failed to properly apply;  whether intentionally or by mistake, it matters not.   If, as Strauss testified, he wanted the two LLCs to have a separate legal existence, whether to avoid liability issues with the property or for some other purpose, he must respect and not ignore their legal existence in the land use process.   This distinguishes this case from Richards;  Strauss cannot have it both ways.   Strauss was never the owner, nor did he ever have written authorization as required by the commission's regulations;  he thus did not have a sufficient interest in the property.

C.

The remaining question is whether the commission properly denied the request to revoke the subdivision.   In light of the above, this court defers on this question of whether the planning statutes provide authority, perhaps under the power to approve and modify;  General Statutes § 8–26(d);  or perhaps under some inherent power, or whether there is simply no power.⁵

III

For the above reason, the appeal is dismissed.

Berger, J.

FOOTNOTES

FN1. Section 2.4.1 of the commission's regulations states that an application must be “properly completed and signed by the owner(s) of the property.   If the owner(s) are to be represented by others, a letter authorizing such representation, signed by the owner(s), shall accompany the application.”.  FN1. Section 2.4.1 of the commission's regulations states that an application must be “properly completed and signed by the owner(s) of the property.   If the owner(s) are to be represented by others, a letter authorizing such representation, signed by the owner(s), shall accompany the application.”

FN2. Section 34–130(a) states:  “Except as provided in subsection (b) of this section, every member is an agent of the limited liability company for the purpose of its business or affairs, and the act of any member, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company of which he is a member binds the limited liability company, unless the member so acting has, in fact, no authority to act for the limited liability company in the particular matter and the person with whom he is dealing has knowledge of the fact that the member has no such authority.”.  FN2. Section 34–130(a) states:  “Except as provided in subsection (b) of this section, every member is an agent of the limited liability company for the purpose of its business or affairs, and the act of any member, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company of which he is a member binds the limited liability company, unless the member so acting has, in fact, no authority to act for the limited liability company in the particular matter and the person with whom he is dealing has knowledge of the fact that the member has no such authority.”

FN3. Section 34–187(a) states:  “Except as otherwise provided in an operating agreement, suit 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, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34–142;  or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34–142.”.  FN3. Section 34–187(a) states:  “Except as otherwise provided in an operating agreement, suit 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, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34–142;  or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34–142.”

FN4. He seemed to move away from this position during argument..  FN4. He seemed to move away from this position during argument.

FN5. Of course the commission noted in its denial that plaintiff's counsel had written, in the context of General Statutes § 8–26(c), “Otherwise, the revocation of a subdivision is illegal, but persons affected by revocation of the subdivision have the right to appeal under sections 8–8 and 8–28 of the General Statutes since it is an ‘official action or decision’ of the planning commission.”   Fuller, 9B Connecticut Practice Series:  Land Use Law and Practice (2012), § 50.2, pp. 152–53..  FN5. Of course the commission noted in its denial that plaintiff's counsel had written, in the context of General Statutes § 8–26(c), “Otherwise, the revocation of a subdivision is illegal, but persons affected by revocation of the subdivision have the right to appeal under sections 8–8 and 8–28 of the General Statutes since it is an ‘official action or decision’ of the planning commission.”   Fuller, 9B Connecticut Practice Series:  Land Use Law and Practice (2012), § 50.2, pp. 152–53.

Berger, Marshall K., J.