Opinion
NNHCV166060176S
07-07-2016
Joseph Spezzano et al. v. North Branford Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, J.
The defendant has moved to dismiss this appeal from the denial of the plaintiffs' application to have a certificate of zoning compliance issued for the subject property and from the issuance of a cease and desist order by the zoning enforcement officer. The defendant asserts that the plaintiffs lack standing to file this appeal as they are merely tenants of the property and not the property owner. The plaintiffs contend that as tenants that are aggrieved both by the denial of the certificate and the issuance of a cease and desist order.
" Where a party is found to lack standing, the trial court is without subject matter jurisdiction to adjudicate the cause of action. Lack of subject matter jurisdiction may be raised at any . . . A motion to dismiss admits all facts well pleaded. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks and citations omitted.) Lewis v. Swan, 49 Conn.App. 669, 674, 716 A.2d 127 (1998). For purposes of determining whether the plaintiffs have standing, I assume the factual allegations in the complaint to be true.
The plaintiffs are tenants of the property located at 400 Totoket Road in North Branford. Over the course of several years and for a continuous period of time, the plaintiffs and others utilized the property for excavation, grading and filling of the land and removal of sod, loam, clay, sand, gravel and stone. On October 5, 2015, the plaintiffs submitted an application for a certificate of zoning compliance for the subject property to recognize the quarrying operation taking place upon the property as a legal nonconforming use. On October 20, 2015, the town zoning enforcement officer denied the application. On October, 22, 2015, the zoning enforcement officer issued a cease and desist order to stop all quarrying and related activities. The plaintiffs appealed both decisions to the defendant. On December 23, 2015, the defendant denied the plaintiffs' appeal.
The exhibits attached to the defendant's motion to dismiss which did not provoke an objection by the plaintiffs indicate that the owner of the subject property is " What T.F., LLC" and that Mark DiLungo is the managing member of What T.F., LLC. What T.F., LLC. was listed as the property owner on the plaintiffs' application for a certificate of zoning compliance. The application form contains a section which asks, in cases in which the applicant is not the owner of the property, the owner to provide written consent to the filing of the appeal. No one signed the plaintiffs' application on behalf of What T.F., LLC. Lungo subsequently sent a letter to the defendant indicating that he had not signed or requested any changes to the property, that the plaintiffs were in default of their lease and asking that the defendant take no action on the plaintiffs' appeal.
The defendant appears to assert two claims in its motion to dismiss: (1) that the plaintiffs as tenants of the subject property may not file this appeal in court as they are not properly aggrieved by the defendant's decision upholding the actions of the zoning enforcement officer; and (2) that the plaintiffs lacked standing to apply for a certificate of zoning compliance before the defendant because the owner of the subject property did not consent to the plaintiffs' application. The plaintiffs argue that, as tenants operating a quarrying business on the subject property, they are aggrieved by the defendant's refusal to allow the property to be used for such purposes and by the issuance of an order that they stop operating their quarrying business.
The two legal concepts of " aggrievement" and " standing" are similar but not identical. Gladysz v. Planning and Zoning Commission of Town of Plainville, 256 Conn. 249, 255, 773 A.2d 300 (2001). Aggrievement is a jurisdictional question which involves the court's subject matter jurisdiction to hear the appeal. Id. 257. Standing concerns whether a party is a proper party to file an application in a zoning matter. Id. I will address in turn the defendant's distinct claims that the plaintiffs are not aggrieved and lack standing.
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 of City of Bridgeport, 278 Conn. 660, 664-65, 899 A.2d 26 (2006).
In Primerica v. Planning and Zoning Commission, 211 Conn. 85, 94-95, 558 A.2d 646 (1989), our Supreme Court recognized that a lessee of the property can have a sufficient interest in the property to be considered an aggrieved party. Further, in Moutinho v. Planning & Zoning Commission of City of Bridgeport, supra, 278 Conn. 669-70, the court concluded that a party with an oral agreement to lease property after the fulfillment of a contingency is aggrieved by a land use decision affecting the property. Here, the plaintiffs are tenants of the property who operate quarrying activities on the property. The decisions of the defendant to deny a certificate of zoning compliance so that the property can be used for quarrying and to uphold a cease and desist order to the plaintiffs halting quarrying and related activities on the property unquestionably adversely affect the specific personal and legal interests of the plaintiffs. The plaintiffs are prohibited by the defendant's actions from operating now and in the future their ongoing quarrying business on the property which they occupy. They are classically aggrieved by the defendant's actions.
The defendant further contends that the plaintiffs lacked standing to file an application seeking a certificate of zoning compliance. It asserts that the submission of an application requires the consent of the owner of the property which the plaintiffs did not obtain in this case.
The standard for determining whether a party has standing to apply in a zoning matter is less stringent than that governing aggrievement. Gladysz v. Planning and Zoning Commission of Town of Plainville, supra, 256 Conn. 257. " A party need have only a sufficient interest in the property to have standing to apply in zoning matters." Id. Whether that standard is met depends on the facts of each particular case and involves the consideration of a number of factors which include " [w]hether 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." Id., quoting Richards v. Planning & Zoning Commission, 170 Conn. 318, 323-24, 365 A.2d 1130 (1976). A consideration of those factors compels the conclusion that the plaintiffs possess a sufficient legal interest in the property to apply for a certificate of zoning compliance. The plaintiffs were tenants in possession of the subject property. They were using the property for excavation, grading and filling of the land and removal of sod, loam, clay, sand, gravel and stone, a use that was prohibited by the town's zoning regulations. The zoning enforcement officer had issued a cease and desist order that they stop operating their quarrying business on the property. The plaintiffs possessed a real and concrete interest in obtaining a certificate of zoning compliance so that they could continue to utilize the land for their quarrying operation.
The defendant argues that the North Branford zoning regulations require the owner to " sign off" on the application for an appeal of the actions of a zoning enforcement officer. Since the owner of the subject property did not sign the consent section of the appeal application, the defendant contends that the plaintiffs lacked standing to file the application. The defendants cite D.S. Associates v. Planning & Zoning Commission of Town of Prospect, 27 Conn.App. 508, 607 A.2d 455 (1992), as support for its position.
In D.S. Associates, the court considered whether an entity which filed for a subdivision of land and which was not the owner of the subject property had standing to file the application when the zoning regulations specifically required the owners to apply or to authorize the application. Although the applicant, D.S. Associates was a partnership consisting of four partners, who were the shareholders in Twin Pines, the owner of the property, the court held that the failure of the owner to apply or authorize the application prevented D.S. Associates from attaining standing to file the application with the zoning commission. The lynchpin of the court's decision was the express language of the zoning regulations which provided that the " Application for approval of a plan of a subdivision shall be made by the owner(s) of record of the subject property or by an authorized agent, in writing on a form furnished by the Commission." Id., 511.
The zoning regulations of the town of North Branford is devoid of such language or any specific language requiring the owner of the property to apply or authorize an application for a certificate of zoning compliance. Although the application form generated by the defendant asks applicants who are not owners of the property to have the owners indicate their assent to the filing of the appeal, there is no indication on the application form or in the regulations themselves that the application will not be considered absent such assent. Since the plaintiffs as tenants who operate a quarrying business on the property possessed a substantial and concrete interest in obtaining a certificate of zoning compliance, express language in the zoning regulations limiting applications to the owner of the land is required to deny them standing to file such an application. See Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976). See also 89 A.L.R.2d 663 (A lessee has generally been regarded as having sufficient standing to apply in his own right for a zoning variance as to leased property or to appeal for the denial thereof.)
For the reasons stated, the defendant's motion to dismiss the plaintiffs' appeal is denied.