Opinion
No. CV 11-6019729 S
September 29, 2011
MEMORANDUM OF DECISION
FACTS
The Plaintiffs, Susan Civitano and Dean O'Donnell, bring this appeal, following a decision of the Defendant Conservation Commission of the Town of Fairfield. The commission granted a permit to the Defendants, Christopher Cocco and Malgorzata Piekarski, to conduct a regulated activity on property located on Tuller Road and Little Brook Road, Fairfield.
The Plaintiffs, who are husband and wife, reside at 98 Little Brook Road, Fairfield. The Plaintiff Dean O'Donnell is the record owner of the property, pursuant to a quitclaim deed from his wife, Susan Civitano.
98 Little Brook Road abuts, and is adjacent to the property on which the Defendants Cocco and Piekarski sought, and obtained the permit to conduct, a regulated activity.
The Conservation Commission, acting as the wetlands authority of the Town of Fairfield, held four hearings on the application, which was submitted on February 1, 2011. Hearings were held on February 3, March 3, April 7 and May 5. At its May 5th meeting, the Conservation Commission approved the application, subject to certain conditions.
The Plaintiffs instituted this appeal, pursuant to Section 22a-43(a) of the General Statutes. That statute provides:
any person owning or occupying land which abuts any portion of the land within, or is within a radius of ninety feet of, the wetlands or watercourse involved in any regulation, order decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . .
Section 22a-43(a), the statute which governs appeals from municipal wetlands agencies, differs in some key respects from Section 8-8(1), the statute which controls appeals from a municipal planning and zoning commission, or a zoning board of appeals.
Section 8-8(1) defines an "aggrieved person" to include:
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.
In their Second Amended Complaint, dated August 9, 2011, the Plaintiffs allege (paragraph 7), that they " . . . are the owners of certain premises situated in the Town of Fairfield, County of Fairfield and State of Connecticut, which abuts and/or is within a radius of ninety (90) feet of the subject property and are statutorily aggrieved by the action of the commission in approving the application pursuant to section 22a-43 of the Connecticut General Statutes."
The Defendants Christopher Cocco and Malgorzata Piekarski have moved to dismiss the appeal as to both of the Plaintiffs.
Regarding Susan Civitano (#107), they claim that she is not the "owner" of 98 Little Brook Road, because title vested in her husband when the quitclaim deed was recorded. They further contend that there is no allegation in the complaint that Susan Civitano "occupies" the premises.
As to Dean O'Donnell (#109), the Defendants claim that he does not own property which is located within 90 feet of the subject wetland or watercourse. They insist that he must plead and prove that he owns or occupies land which either abuts the wetlands or watercourse, or is within a radius of 90 feet of the wetland or watercourse. The allegation in the operative pleading states that the Plaintiffs' property "abuts and/or is within a radius of ninety (90) feet of the subject property." (Emphasis added.)
Both motions maintain that the court lacks subject matter jurisdiction over the pending appeal.
AGGRIEVEMENT MUST BE PLED AND PROVEN
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991). The party claiming to be aggrieved must sustain the interest in the property throughout the course of an appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
The question of aggrievement is one of fact. Hughes v. Town Planning and Zoning Commission, 156 Conn. 505, 508 (1987).
Two broad categories of aggrievement have been recognized: 1) statutory aggrievement, and 2) classical aggrievement.
Statutory aggrievement exists through legislative fiat, rather than by a judicial analysis of the facts of a particular case. One claiming statutory aggrievement must show that a particular statute grants to that party standing to pursue an appeal, without the necessity of demonstrating actual injury, based upon the particular facts at hand. Pond View, LLC v. Planning and Zoning Commission, 288 Conn. 143, 156 (2008); Andross v. West Hartford, 285 Conn. 309, 322 (2008).
Classical aggrievement, on the other hand, requires the party claiming to be aggrieved to satisfy a two-fold test; 1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must prove that the specific interest has been specifically and injuriously affected by the action of the agency whose decision has been appealed. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
OWNING PROPERTY WHICH ABUTS THE PROPERTY CONTAINING A WETLAND OR WATERCOURSE IS SUFFICIENT TO ESTABLISH AGGRIEVEMENT
The Defendants argue that there can be no showing of aggrievement, unless the Plaintiffs' property abuts the wetland or watercourse, or is situated within a radius of ninety (90) feet of the wetland or watercourse. They contend that owning or occupying property which "abuts" any portion of the property on which the wetland or watercourse is situated, is not sufficient to establish aggrievement or standing, pursuant to Section 22a-43(a) of the General Statutes.
The Defendants read Section 22a-43(a) too narrowly.
In the context of an 8-8 appeal, the Supreme Court has opted for a "bright line" interpretation of the statute, holding that the phrase "land involved" concerns the complete tract owned by the applicant, rather than only the discrete portion of the property containing the activity. Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 668-70 (1989).
While no Appellate Court has addressed whether the phrase "any portion of the land . . ." as used in Section 22a-33(a), C.G.S. should be similarly construed, Superior Courts which have considered the issue have endorsed the "bright line" approach utilized in Caltabiano (See Glastonbury Coalition for Sensible Growth v. Conservation Commission, 35 Conn. L. Rptr. 418, 2003 WL 22206235 (Maloney, J.); Lorenz v. Old Saybrook Inland Wetlands Watercourses Commission, 37 Conn. L. Rptr. 94, 2004 WL 1195484 (Munro, J.); Gevers v. Norfolk Inland Wetlands Watercourses Commission, 38 Conn. L Rptr. 63, 2004 WL 2591843 (Pickard, J.)).
Municipal wetlands agencies have been given express statutory authority to regulate activities which occur not only within the wetland or watercourse itself, but in areas surrounding them. Section 22a-42a(f) provides:
If a municipal wetlands agency regulates activities within areas around wetlands or watercourses such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses, and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.
Even before Section 22a-42a(f) was adopted, courts had acknowledged the ability of municipal wetlands agencies to regulate activities in areas surrounding wetlands or watercourses. Aaron v. Conservation Commission, 183 Conn. 532, 551-52 (1981).
The Defendants' construction of Section 22a-43(a), C.G.S., could deny to an abutting land owner or occupier, a portion of whose property is contained within an upland review or buffer area, statutory aggrievement, because the property is more than ninety feet from the wetland or watercourse itself. The language of the statute does not mandate this result.
The Defendants' interpretation renders the phrase "any portion of the land" superfluous verbiage, adding nothing to the statute. The General Assembly could have accomplished the result advanced by the Defendants, by defining an aggrieved party to mean one whose land "abuts or is within a radius of ninety (90) feet of a wetland or watercourse."
The legislature did not employ that language.
Public policy also argues in favor of the "bright line" approach adopted in Caltabiano.
General Statutes Section 22a-36 describes Connecticut's wetlands and watercourses as "indispensable, irreplaceable but fragile natural resources," and states that they represent "an interconnected web of nature."
A party owning or occupying property which abuts any portion of the property on which the wetland or watercourse which is the subject of regulation is located is statutorily aggrieved pursuant to Section 22a-43(a) of the General Statutes.
The allegation, contained in paragraph 7 of the Second Amended Complaint, claiming ownership of property which "abuts . . . the subject property," has sufficiently alleged statutory aggrievement.
SUSAN CIVITANO, AS THE SPOUSE OF DEAN O'DONNELL, IS AGGRIEVED
In paragraph 7 of their Second Amended Complaint, both Plaintiffs allege that they are the "owners" of 98 Little Brook Road.
The Defendants claim that Susan Civitano cannot qualify as an "owner" of the property, and that she is therefore not statutorily aggrieved.
In an appeal brought pursuant to Section 8-8(1) of the General Statutes, the word "owner" has no formal meaning. Instead, it has been interpreted in context, and in accordance with the circumstances of each case. Smith v. Planning Zoning Board, 203 Conn. 317, 322 (1987).
In Smith, the court determined that the holder of a life estate was aggrieved, and satisfied the ownership requirement of Section 8-8(1), in that the life estate gave to the Plaintiff the right to use the land in a manner which was consistent with a fee interest. Smith v. Planning Zoning Board, supra, 323.
In Sinclair v. Planning Zoning Commission, 27 Conn. L. Rptr. 350 (2000), a husband shared control and occupancy of property with his wife, who was the record title owner. The husband claimed aggrieved status, based upon his wife's ownership of the property.
The court pointed out that in the event of a divorce action, the courts would protect the interest of both parties in the property, and that the rights of a non-owner spouse are recognized in the intestacy statutes. Therefore, the husband was an aggrieved party. Sinclair v. Planning Zoning Commission, supra, at p. 6252.
Sections 451-436 45a-437, Connecticut General Statutes.
Legal title to real property is not required in order to establish aggrievement. Antennucci v. Hartford Catholic Dioceses Corporation, 142 Conn. 349, 355 (1955). Aggrievement has been found under circumstances where the party claiming to be aggrieved has no legally enforceable interest in the property. DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 376 (1991).
An individual claiming aggrievement may be the holder of a security interest in the property. Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 (2000); be a contract purchaser, Shapero v. Zoning Board, 192 Conn. 367, 376 (1984); or maintain a leasehold interest. Michel v. Planning Zoning Commission, 28 Conn.App. 314, 324-25 (1992).
As the spouse of the holder of title to the property, the Plaintiff Susan Civitano has sufficient interest in the property to qualify as an "owner," consistent with Section 8-8(1) of the General Statutes. There is no reason why a different definition should be employed, when aggrievement is pled pursuant to Section 22a-43(a), C.G.S.
Furthermore, since statutory aggrievement has been clearly pled in paragraph 7 of the Second Amended Complaint, and the statute is referenced in the pleading, Susan Civitano is not precluded from proving, at trial, that she has "occupied" the premises throughout the pendency of this appeal.
Both motions to dismiss are DENIED.