Opinion
No. CV-11-6004843
October 27, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants, River Sound Development, LLC and Old Saybrook Planning Commission have moved to dismiss this appeal for lack of subject matter jurisdiction in that the plaintiff lacks standing to appeal because: 1) he does not qualify as a "person owning land" under Connecticut General Statutes § 8-8(a)(1); 2) his property does not abut nor is it within one hundred feet of the three separate, noncontiguous, individual parcels of land involved in the decision of the board; and 3) the plaintiff's alleged interests are not adversely affected by the decision of the board.
The defendant, River Sound Development, LLC, moved to dismiss on July 18, 2011. The plaintiff filed an objection thereto on August 22, 2011 and the defendant, Old Saybrook Planning Commission, filed a motion to dismiss on identical grounds, relying on River Sound's memorandum, on September 1, 2011. The plaintiff has not filed a separate objection to the second motion to dismiss. However, the court will treat the plaintiff's objection as addressing both motions to dismiss.
Factual and Procedural Background
This is an appeal from the approval by the Old Saybrook Planning Commission (the "Commission") of the application of River Sound Development, LLC ("River Sound") to modify a special exception approved by the Commission on March 23, 2005. The approval of the Original Application was appealed by the plaintiff, Robert Lorenz and his sister, Carol Lorenz-Holland. That appeal was dismissed by this court on June 5, 2008. See Connecticut Fund for the Environment, Inc. et al. v. Town of Old Saybrook Planning Commission et al., Judicial District of Middlesex, CV-05-4002715 (June 5, 2008, Aurigemma, J.), 2008 WL 2502556.
In the application for modification at issue here River Sound increased the size of the proposed open space subdivision to 925.82 acres and made modifications to the original preliminary open space subdivision plan. The proposed changes included replacing 28 units which were to occupy 37.57 acres on the westerly side of the property with eleven single-family detached dwelling units located on 31.02 acres, and adding 13 subdivision lots along Ingham Hill in Old Saybrook in an area originally shown as open space on the preliminary open space subdivision plan. The modification application added additional property on Bokum Road, known as the Pianta parcel, to the original open space subdivision plan and sought to subdivide the added property into nine open space lots. The Ingham Hill Road and Bokum Road subdivision lots were to have well and septic, while the remainder of the proposed subdivision lot were to be served by public water and a wastewater treatment facility.
The prehearing legal notice of the modification application stated:
Application "The Preserve" Modification to Approved Special Exception for Preliminary Open Space Subdivision Plan for 226 total dwelling units (925.82 total ac.) Open Space (555.83 total ac.), Ingham Hill and Bokum Roads (M55/L3, M56/L6, M61/L15, 17, 18), Residence Conservation C District, Aquifer Protection Area. Modifications include, but are not limited to, adding 9 conventional open space subdivision lots on the Pianta parcel, 32.62 acres located south and west of 195 Bokum Road; substitute 11 single family dwellings in a 31.02 acre Planned Residential Development for the approved 28 single family dwelling in a subdivision on the west side of "The Preserve," east of the Westbrook Town Line; and add 13 conventional open space subdivision lots on 42.93 acres along the northerly portion of Ingham Hill Road currently designated as open space; and other modifications as indicated in the documents. Applicant: River Sound Development, LLC, Owner, Agent: David M. Royston, Esquire.
Record, Ex. 17.
In a letter to the Commission submitted prior to the final public hearing on the modification application, River Sound's attorney stated:
[T]he Applicant has withdrawn its request for "stand-alone" development of the three identified perimeter areas of its property. It seeks only to have the original Special Exception modified to allow development of these properties as part of the entire approved Plan. It is further acknowledged that any decision allowing this Modification to the Special Exception is a modification of the entire Plan, and any approval in reliance on that understanding is integral to the decision.
Record, Ex. 115, p. 4. Emphasis added.
The Commission approved the modification application on March 16, 2011. The plaintiff appealed, alleging both statutory and classical aggrievement.
A hearing on the defendants' Motions to Dismiss took place on September 13, 2011. At the hearing the plaintiff produced evidence that he and his sister, Carol Holland-Lorenz, are tenants in common who own property in Old Saybrook designated as Map 51, Lot 33 and Map 52, Lot 4 in the Old Saybrook assessor's office. The latter property (Map 52, Lot 4) abuts River Sound's property shown as Lot 6 on Map 56, part of the 925.82 acres which was the subject of its modification application.
Discussion of the Law and Ruling
River Sound argues that the plaintiff lacks standing to appeal for three reasons: as a tenant in common with his sister, he cannot appeal because she has not joined the appeal; the plaintiff's property does not abut the "land involved" in the decision of the Commission and, therefore, the plaintiff is not statutorily aggrieved; and the plaintiff cannot prove classical aggrievement.
The issue of the type of interest in property which creates standing under Connecticut General Statutes § 8-8(a) was decided in Smith v. Planning and Zoning Board, 3 Conn.App. 550, 490 A.2d 539 (1985), aff'd, 203 Conn. 317, 524 A.2d 1128 (1987). At the time Smith was decided, § 8-8(a) provided:
(a) Any person or persons severally or jointly aggrieved by any decision of [a zoning board of appeals], or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.
Emphasis added.
In Smith the court interpreted the italicized language above and held that "any person owning land" allowed the plaintiff, the co-holder of a life estate in the property, to appeal the decision of the board in the absence of her husband. The court in Smith explained:
General Statutes 8-8 employs two criteria for the determination of whether a person has standing to appeal. A person must either be aggrieved by an official action or decision of a zoning board, or have the status of an owner of land abutting or within a radius of one hundred feet of any portion of the property involved in such action or decision. Those in the second category need not prove aggrievement independent of their status as owners of property bearing the necessary relation to property involved in the board's action. See Walls v. Planning Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979).
Smith, supra, at pp. 552-53.
In Smith, the appellee argued that the plaintiff was not entitled to appeal in the absence of her husband, the co-holder of a life estate in the property. The court rejected that argument stating:
General Statutes 8-8 states that "any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision" may appeal. The statute does not require that a person be an owner in any particular capacity or degree to bring an appeal from a decision of a zoning board. See Hayden v. Zoning Board of Appeals, 26 Conn.Sup. 168, 169, 214 A.2d 837 (1965). Thus, a co-owner of property who pleads a threatened injury to a specific proprietary interest therein has been held to have the right to appeal as an "aggrieved" person under the first prong of General Statutes 8-8. Id., 170. We likewise find, under the second prong of that statute, that a co-owner of property is entitled to appeal as an owner of land "which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board."
Id. at pp. 555-56. Emphasis added.
Smith clearly supports the plaintiff's position that his co-tenancy entitles him to appeal from the Commission's decision even if his co-tenant does not join in the appeal. The defendants argue that Smith is no longer good law because it was decided before the amendment to § 8-8(a) in 1989. As amended, that statute provides:
(a) As used in this section:
(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, "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.
2) "Board" means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or such official's designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.
Emphasis added.
The defendants argue that because the first prong of § 8-8(a) was amended to remove the reference to "persons jointly or severally aggrieved," that a person with joint ownership of land with another can no longer appeal unless his joint tenant also appeals. Without any reference to legislative history, the defendants argue that, "There is strong logic not to allow a single `joint' or `several' owner to be awarded automatic statutory aggrievement by reason of property proximity, where one or more of the other joint or several owners are not inclined to appeal, for whatever reason." Memorandum of Law of defendant, River Sound, at p. 5.
The court does not find the defendants' argument to be persuasive. The official history to § 8-8 explains that " P.A. 89-356 entirely reorganized existing provisions." Furthermore, P.A. 89-356 added § 8-8(p) which provides:
p) The right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice.
The defendants ignore the fact that Public Act 89-356 changed the section of the statute concerning classical aggrievement to which the Smith court referred as the "first prong." It made no change whatsoever to the "second prong" of § 8-8(a), which concerns statutory aggrievement. Both before and after the 1989 amendments, § 8-8(a) provided the right of appeal to "any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision."
In light of the legislative directive for liberal construction of the statute found in § 8-8(p), it is more logical to assume that the 1989 changes to § 8-8(a) were intended to remove the abstruse phrase "persons severally or jointly aggrieved," rather than to limit the applicability of statutory aggrievement. Under Smith, the plaintiff is entitled to appeal from the decision of the Commission if he owns land within a radius of one hundred feet of any portion of the land involved in the decision regardless of whether his co-tenant does or does not appeal.
The defendants next argue that the plaintiff's property does not abut nor is it within a radius of one hundred feet of any of the three separate, non-contiguous individual parcels which River Sound's modification application involved and, therefore, does not abut the "land involved in the decision of the board" under § 8-8(a)(1).
The plaintiff presented evidence that he owns land which abuts a portion of the 925.82 acres owned by River Sound shown on the "Modified Preliminary Open Space Plan" submitted by River Sound. The defendants argue that the modification application only involves three small, separate, non-contiguous parcels of land, none of which abut the plaintiff's land.
The plaintiff argues that the Commission and its staff treated the modification application as a modification of the original special exception in its entirety. He cites to an excerpt from an opinion letter to the Commission from its attorney, Mark Branse:
The applicant cannot have it both ways: the first three pods as a "stand alone development" but the retention of Special Exception that was approved as a comprehensive plan for the total Preserve property. This is either a "stand alone development" of the pods, and the "full development" Special Exception is void, allowing for a new plan and a new application for that land; or we still have one single unified Special Exception and the first three pods are "phases" of the approved plan. The entire reason why Section 56.6.8 exists is to prevent exactly what is being proposed in this application. The concept of Section 56 and the Conservation Zone was to create a comprehensive, unified vision and plan for the entire Preserve property, rather than fragmented piecemeal development. The area "covered by" this Special Exception for Open Space Subdivision is the entire parcel.
Record, Ex. 66, p. 5.
The plaintiff further correctly notes that the River Sound's counsel in a letter to the Commission referred to above (p. 3) acknowledged that any decision on the modification application applies to the entire plan. See Record, Ex. 115, p. 4.
River Sound has unsuccessfully raised the same argument it now raises in prior litigation relating to the property at issue: River Sound argues that the plaintiffs are not statutorily aggrieved because they do not own land that abuts that part of the 1,000-acre tract on which the commission permitted The Preserve to conduct regulated activities. The Preserve (River Sound's predecessor in interest), already tested this argument unsuccessfully in a motion to dismiss, which the court (Arena, J.) [ 37 Conn. L. Rptr. 94], denied. As does River Sound, The Preserve conceded that the plaintiffs' land abuts its property. It argues, however, that the language `any portion of land' in [§ 22a-43(a)] must mean that the plaintiffs' land must either abut or be within a radius of ninety feet of the wetlands area. Rejecting this argument, the court had noted that, although no Connecticut court has interpreted the language "any portion of land" as expressed in § 22a-43(a), the Supreme Court in Caltabiano v. Planning Zoning, 211 Conn. 662, 663, 560 A.2d 975 (1989), interpreted similar language in General Statutes § 8-8(a)(1), concluding that "`land involved' . . . concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency." (Emphasis added.) Still, River Sound contends that in denying its motion to dismiss, the court ignored a salient difference between the facts in this case and those in Caltabiano, namely, here, unlike Caltabiano, the portion of the property on which the commission permitted The Preserve to conduct regulated activities will eventually be hemmed in by other subdivision lots and, thus, will never abut the plaintiffs' property. In ruling on the motion to dismiss, the court (Arena, J.) addressed that distinction. The Preserve argues that the wetlands on the property will eventually be contained in a subdivision that will not abut the plaintiffs' land. Currently, The Preserve is awaiting approval for that subdivision. The Preserve has not supplied [the] court with any Connecticut decisional law to support its position that a subdivision of a tract of land would cut off statutory aggrievement nor has this court found any. If this court were to find that the mere possibility of subdivision would be sufficient to defeat standing, the principle of access to courts would be undermined. Similarly, now, the court agrees with that application of the law and, therefore, rejects River Sound's argument. Accordingly, because the plaintiffs have pleaded and proved that they own land that abuts the subject property, the court finds that they are statutorily aggrieved.
Lorenz v. Old Saybrook Inland Wetlands and Watercourses Commission, 2004 Ct.Sup. 7594, 7597-8, 37 Conn. L. Rptr. 94, Judicial District of Middlesex (May 12, 2004, Munro, J.).
In Caltabiano v. Planning Zoning, 211 Conn. 662, 663, 560 A.2d 975 (1989), the applicant applied for a zone change on a "3.8 acre parcel located deep within [a] 110 acres parcel." Id., at p. 664. The plaintiffs, whose property either abutted or was within 100 feet of the 110-acre parcel, claimed that they were statutorily aggrieved. Id., at pp. 64-65. The court interpreted the phrase "land involved" in § 8-8(a) to be the complete tract of land owned by the applicant, not just the portion of the land containing the proposed activity, stating: "To apply § 8-8(a) in such a narrow fashion would be to nullify its effect of opening up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions." Id., at pp. 669-70.
In Abel v. Planning and Zoning Commission, 297 Conn. 414, 998 A.2d 1149 (2010), the applicant sought to subdivide its property into two parcels and sought a special permit to construct a church on the second parcel. The plaintiffs owned land within a 100-foot radius of the undivided property, but not within a 100-foot radius of the second parcel. The court held that the plaintiffs had standing to appeal the planning and zoning commission's decision approving the special permit for the second parcel because the "land involved" in the decision was the entire property. Id., at pp. 438-39.
Based on the foregoing, the plaintiff is statutorily aggrieved under § 8-8(a) because his property abuts the land involved in the Commission's decision on the modification application.
The defendants also argue that the plaintiff is not classically aggrieved. Classical aggrievement require 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 decision has specially and injuriously affected that specific personal or legal interest. Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664-65 (2006).
The plaintiff has met the first prong of classical aggrievement in that he owns property and lives on Ingham Hill Road, which provides the principal access to the proposed subdivision which was the subject of the River Sound application. The plaintiff could, therefore, be affected differently than other residents of Old Saybrook.
Aggrievement is established if there is a possibility that some legally protected interest of the appellant may be adversely affected. Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). There was considerable evidence presented at the public hearing concerning the adverse traffic impact which could result from the proposed development. Aggrievement has been found where increased traffic hazards and traffic congestion are implicated in a project approved by a land use agency. McDermott v. Zoning Board of Appeals, 150 Conn. 510, 513-14, 191 A.2d 551 (1963). Based on the foregoing the plaintiff has met the second prong of the classical aggrievement test.
For the foregoing reasons, the Motion to Dismiss of the defendant, River Sound, and the Motion to Dismiss of the defendant, Commission, are denied.