Opinion
No. 05-4003359
May 22, 2007
MEMORANDUM OF DECISION
This is an appeal by plaintiffs Edward Wucik, Teressa Izzarelli, Chester Sajowicz and Shirley Sajowicz from the action of the defendant Planning and Zoning Commission of the Town of Preston granting and approving a special exception and site plan for defendants Hyman Biber, Strawberry Park Resort Campground, Inc. dba Strawberry Park (Strawberry Park) and Volin, LLC.
The record indicates that on January 28, 2005, defendant Strawberry Park filed an application with the defendant Commission for a special exception under the Preston zoning regulations for property owned by Volin, LLC for approximately 76 acres in the R-80 zone. On February 1, 2005, a similar application was filed. By way of background, "[s]trawberry Park is a campground located on the east side of Pierce Road in the Town of Preston. The defendants received a special exception for a 'recreation campground' from the Zoning Board of Appeals in 1973. In 1974, the campground opened with 104 campsites. It currently has 480 campsites." Miskimen, et al. v. Biber, et al., 85 Conn.App. 615, 619 (2004). By the application, Strawberry Park sought to expand the special permit to include 40 additional campsites and to include land on the west side of Pierce Road as an accessory use. The request for the additional 40 campsites was later withdrawn.
The defendants were Hyman Biber, Strawberry Park Resort Campground, Inc., Strawberry Fans, LLC, Strawberry Park, Inc. and Volin, LLC., Id. n. 1.
A public hearing was held on the application on April 5, 2005. The hearing was continued to May 3, 2005. At the conclusion of the public hearing, after discussion, the Commission voted to approve the application with conditions. Notice of such decision was published on May 12, 2005 in accordance with the General Statutes.
By complaint dated May 27, 2005, plaintiff's instituted the present appeal. Connecticut General Statutes Section 8-8(b) provides that such appeals "shall be commenced by service of process within 15 days from the date that notice of the decision was published as required by the General Statutes. Failure to take the appeal within the 15 day time limit is a matter involving subject matter jurisdiction." Cardoza v. City of Bridgeport, 211 Conn. 78, 82 (1989).
The record contains an affidavit affirming that the complaint, summons and the entire process was delivered to Margaret LaBranche, a state marshal for service, on the 27th day of May 2005. This is the 15th day following publication. Service of process on the necessary parties was made four days later on May 31, 2005.
Connecticut General Statutes Section 52-593a(a) provides:
Right of action not lost where process served after statutory period. When, (a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.
The case at bar is not an appeal under Section 4-183. It must then be found that when the process was personally delivered to a state marshal authorized to serve process within the 15-day time limited by law and service was made upon the defendants within 30 days of delivery, such action was commenced within the time required by Section 8-8b. R. Fuller, 9A Connecticut Practice Series, Land Use Law and Practice (3d Ed. 2006), Section 25:10 P20-22.
This appeal is brought under the provisions of Connecticut General Statutes Sections 8-9 and 8-8. Section 8-8b limits such appeals to persons aggrieved by the decision appealed from. Pleading and proof of aggrievement are essential to establish subject matter jurisdiction over an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996).
In their brief, defendants allege that the Court is deprived of subject matter jurisdiction to hear this case because of the failure of plaintiffs to allege a factual basis for aggrievement in their complaint. Defendants also raised this claim at the time of trial and objected to plaintiff's presentation of evidence on the issue of aggrievement.
This case was scheduled for trial at 10:00 a.m. on May 1, 2007, at which time the parties were present and ready to proceed. At the start of the proceeding, the Court announced that because the clerk's office had been unable to locate the file, the Court had been prevented from reading the briefs. For this reason, the Court was then unaware of the defendant's jurisdictional claim.
When the attorney for the plaintiffs announced that he wished to call Mr. Sajowicz to establish aggrievement, the attorney for Strawberry Park acquainted the Court with the jurisdictional claim citing Hendel's Investors Company v. Zoning Board of Appeals, 62 Conn.App. 263 (2000). The attorney objected to the introduction of any evidence concerning the factual basis for aggrievement. The attorney representing the Commission joined in this objection.
The Court noted the objections and then, in the interest of judicial economy, proceeded to hear the witnesses who were in court, reserving a decision on the jurisdictional issue for a later date.
The defendants again raised the jurisdictional issue in final argument.
When a claim of subject matter jurisdiction is raised, it must be resolved before a decision on the merits may be addressed. Galland v. Bronson, Warden, 2004 Connecticut 330, 333 (1987).
The only claim of aggrievement in the complaint is the following.
4. The Plaintiffs are statutorily or classically aggrieved by the decisions of the Defendant Commission; and
Plaintiffs have alleged the two broad yet distinct categories of aggrievement recognized by statute. Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 288 (2001). Statutory aggrievement is defined by Connecticut General Statutes Section 8-8(1) and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board as well as any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision, which is the subject of the appeal. 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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specifically and injuriously affected by the decision. Harris v. Zoning Commission, 259 Conn. 402, 410 (2002).
The general law on this issue was set forth by the Court in Bongiorno Supermarket, Inc. et al. v. Zoning Board of Appeals, 266 Conn. 531, 537, 538 (2003), based upon Beckish v. Manafort, 175 Conn. 415, 419 (1978). "In order to prevail on the issue of aggrievement, the 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. . . the mere statement that the appellant is aggrieved without supporting allegations as to the particular nature of the aggrievement, is insufficient."
A number of trial courts have faced the issue now before this Court.
In Henry v. Planning Zoning Commission, Super.Ct., Judicial District of Ansonia-Milford at Milford, Docket Number CV98-006422S (March 31, 1999) [24 Conn. L. Rptr. 345], 1999 Conn.Super. Lexis 894. The plaintiffs appealed from the approval of a site plan for the construction of a gas station. In the complaint, two defendants alleged aggrievement "in one or more of the following respects" followed by general claims. The defendant moved to dismiss claiming that these plaintiffs did not allege facts sufficient to support aggrievement. The court (Corradino, J.) noted the general law that pleading and proof of aggrievement were prerequisites to the trial court's jurisdiction and that plaintiff purported to allege classical aggrievement. The court reviewed cases in which the former motion to erase was found to be the proper pleading where a party failed to allege affirmative facts essential to confer jurisdiction. These cases included Goldstein v. Zoning Commission, 157 Conn. 595 (1968). The court discussed the possibility of a motion to revise, then concluded that once jurisdiction is raised, everything must stop.
After reviewing the complaint, the judge concluded that plaintiffs had not alleged facts sufficient to support classical aggrievement and dismissed the appeal of the two plaintiffs.
Hewitt v. Planning Zoning Commission, Super.Ct., Judicial District of New London, Docket Number 555010 (August 29, 2000), involved a similar issue. In that case, the complaint alleged that the "plaintiff is aggrieved by such a granting of the special permit. . ." Defendant moved to dismiss. The trial court (Hurley, J.T.R.) reasoned that such a conclusionary allegation without a factual basis was insufficient to plead aggrievement and thus involved the court's subject matter jurisdiction. The motion to dismiss was granted on this basis. Southwick at Milford Condominium Ass'n, Inc. v. Planning Zoning Board, Super.Ct., Judicial District of Ansonia-Milford at Milford, Docket Number CV05-4004817 (2006), an approval from the granting of a site plan and special permit plaintiff alleged the location of its property and stated that it was "aggrieved by the decision of the board" in that the board's action deprived it of the opportunity to challenge the defendant's application. The defendant moved to dismiss the complaint claiming that plaintiff had failed to plead aggrievement. The trial court (Stevens, J.) concluded that the plaintiff failed to allege sufficient facts to demonstrate either statutory or classical aggrievement. The judge concluded that plaintiff had failed to allege sufficient facts indicating aggrievement as a matter of law and that the court was therefore without subject matter jurisdiction over the plaintiff's appeal. The motion to dismiss was granted.
In two cases consolidated for trial, McDonald v. Waterford, Super.Ct., Judicial District of New London, Docket Numbers 567146 and 566049 (May 25, 2004), 2004 Conn.Super. Lexis 1406. At trial, the parties stipulated as to facts which would constitute statutory aggrievement. The judge (Purtill, J.T.R.) proceeded to decide the case on the merits in favor of the defendant. A last minute review of the complaint by the judge, with the memorandum of decision 90 percent complete, disclosed that the complaint was devoid of any allegation of aggrievement whatsoever. Despite the fact that the decision was on the merits, it was noted that "although the parties have agreed to facts, which would mandate a finding of statutory aggrievement, in the absence of any such allegation in the complaints, a question of subject matter jurisdiction exists and the court cannot find what is not alleged.
In their brief and in argument, defendants cite Hendel's Investors Company v. Zoning Board of Appeals, supra, 62 Conn.App. 263. In this case, the defendant zoning board of appeals granted a certificate of approval for the location of a gasoline station pursuant to Connecticut General Statutes Section 14-321. Plaintiff appealed the action of the board to the Superior Court, which, after a full hearing on the issue of aggrievement, dismissed the appeal finding that aggrievement had not been proven. On appeal to the Appellate Court, plaintiff claimed that the trial court improperly concluded that plaintiff had failed to prove aggrievement and that the board's decision was not supported by substantial evidence. In response, defendants argued that plaintiff failed to plead aggrievement properly and that the court consequently did not have subject matter jurisdiction to hear the administrative appeal. The Appellate Court affirmed the judgment of the trial court on that ground. Id. 264.
In its appeal to the Superior Court, plaintiff in the Hendel's Investors Company case, attempted to allege aggrievement in paragraph 6 of the complaint. Paragraph 6 states:
6. Plaintiff is aggrieved by the decision of the Defendant ZBA in one or more of the following respects: . . .
b. The Plaintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the Defendant ZBA.
c. The Plaintiff's property has been adversely effected (sic) and has been depreciated in value by virtue of the action of the Defendant ZBA.
Subparagraph a of paragraph 6 was abandoned by the plaintiff.
The Appellate Court concluded that the allegations of paragraph 6 of the complaint did not allege aggrievement for an appeal taken pursuant to Sections 14-321 and 14-322.
In upholding the decision of the trial court, the Appellate Court stated as follows:
Finally, the conclusory statements contained in paragraph six of the plaintiff's complaint, i.e. the 'plaintiff is aggrieved by the decision of the defendant,' and 'the plaintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the defendant.' are of little import to our analysis. Those conclusory statements, which purport to allege aggrievement. are insufficient [#20] because adequate factual allegations do not accompany them. See Beckish v. Manafort, supra, 175 Conn. 419. Accordingly, we conclude that the plaintiff failed to [#275] allege facts that, if proven, would constitute aggrievement as a matter of law. The court properly dismissed the plaintiffs appeal for lack of subject matter jurisdiction, and there is no need to consider the plaintiffs claims.
It must be concluded that in order to establish aggrievement, plaintiff must allege facts which, if proven, would constitute aggrievement as a matter of law. The mere statement that plaintiff is aggrieved without supporting allegations as to the particular nature of the aggrievement is insufficient. Beckish v. Manafort, 175 Conn. 415, 419 (1978). Pleading and proof of aggrievement are prerequisites to a court's jurisdiction over the subject matter of an administrative appeal. Gladysz v. Planning Zoning Commission, 256 Conn. 249, 255 (2001). In the case at bar, plaintiff's allegation of aggrievement is a mere conclusionary statement devoid of any specific factual allegations. Where, as here, plaintiff has failed to plead aggrievement properly, the court does not have subject matter jurisdiction to hear the administrative appeal. Hendel's Investors Company v. Zoning Board of Appeals, supra, 62 Conn.App. 264.
Defendants have timely raised the jurisdictional claim in their brief and at trial. It must be concluded that the Court lacks subject matter jurisdiction to hear this appeal.
Accordingly, the appeal is dismissed.