Opinion
No. CV-09-5013858
March 1, 2011
MEMORANDUM OF DECISION
I. Statement of the Appeal
By her complaint, Paula Crawford, D/B/A Leaning Birch Farm (hereinafter plaintiff), appealed from the action of the Zoning Board of Appeals of the Town of Ledyard (hereinafter the Board) denying plaintiff's appeal from a notice of violation and order to correct such violation issued by the zoning enforcement officer (hereinafter the ZEO).
The defendant filed an amended complaint on May 26, 2010, which was subsequently withdrawn.
II. Jurisdiction
General Statutes § 8-8(b) governs appeals from the decisions of zoning boards of appeals to the Superior Court. "The statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 21 Conn. 78, 82 (1989).
a. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b) "an appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within 15 days from the date the notice of the decision was published as required by the General Statutes . . ." Notice of the decision which is the subject of this appeal was published in the New London Day on October 30, 2009. This action was commenced by service of process on the Board and the defendant on November 12, 2009.
It is therefore found that service of process was properly made and such action was commenced within the time allowed by statute.
b. Aggrievement
"Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . 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." Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
"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.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . . `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."
"It is quite clear that in 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.) Primerica v. Planning Zoning Commission, 211 Conn. 85, 94 (1989). Similarly, it is not enough for a party to acquire such an interest only after the appeal is commenced, since General Statutes § 8-8 requires the plaintiff to establish that it was an aggrieved person at the time its appeal was taken. Foran v. Zoning Board of Appeals, 158 Conn. 331, 335-36 (1969).
In her complaint, plaintiff alleges that she is the owner of Leaning Birch Farm at 463 Pumpkin Hill Road, Ledyard, Connecticut, and that she was served by the ZEO with a Notice of Violation on July 10, 2009. It is further alleged that on August 9, 2009, plaintiff appealed the issuance of the order to the Board and that, after public hearing, the Board upheld the issuance of the order on October 21, 2009.
In paragraph 10 of the complaint, plaintiff alleges that she is statutorily aggrieved by the decision of the Board. In its answer to the complaint, the Board stated that it lacked sufficient knowledge and information concerning the allegations of paragraph 10 and left plaintiff to her proof on the claim of aggrievement. Plaintiff here had the burden of proof to establish that she was an aggrieved party and had standing to prosecute this appeal.
The mere denial of plaintiff's appeal to the Board does not itself establish aggrievement. Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502 (1969).
At the trial held February 23, 2011, plaintiff elected to introduce no evidence on the claim of aggrievement. It was the position of plaintiff that there was sufficient evidence in the record to establish aggrievement.
An examination of the record returned to court indicates that at the time of the notice of violation, plaintiff was the owner of the property at 463 Pumpkin Hill Road in the Town of Ledyard and that she had been operating an equestrian center on the property and that from time to time she had been raising puppies for commercial sale on the property.
The tax assessor's cards in the record indicate that the assessor considered plaintiff to be the owner of the property and the parties at the public hearing appeared to have proceeded on the reasonable assumption that plaintiff was still the owner of the property at 463 Pumpkin Hill Road. At the time of trial, plaintiff had the burden of proof to establish aggrievement. Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 538-39. It was incumbent upon the plaintiff to prove her interest in the property not only at the time of the violation, but throughout the proceedings including the time of trial. Primerica v. Planning Zoning Commission, 211 Conn. 94. This plaintiff has failed to do.
Accordingly, the appeal is dismissed.