Opinion
No. FST CV 06 4010003 S
May 6, 2008
MEMORANDUM OF DECISION
Background
A hearing was held on March 27, 2008. The parties have submitted proposed findings and orders. Stones Trail, LLC (Stones Trail) at one time owned property in Weston. There were approximately six lots which Stones Trail planned to develop. Stones Trail lost its interest in the property by way of a foreclosure after the filing of an appeal from the Zoning Board's decision. ADC-10 Ladder Hill Road, LLC (ADC) received title to the property in question by committee deed after foreclosure by sale of the property. The appeal concerns a zoning decision to deny a zoning permit regarding Parcel D of the land in question. The plaintiffs have alleged that parcel D conforms to zoning regulations and is entitled to a certificate of zoning compliance. The plaintiffs also allege that a September 18, 1998 letter from the town's attorney, Christopher Jarboe, stated that the lots did not require subdivision approval and that the lots "might be made conforming in size." Further, the plaintiffs allege that the "validating act," Special Act 99-7, validates the division of land by subdivison.
Law
It is the plaintiffs' burden, not only to allege, but to prove aggrievement. Fox v. Zoning Board of Appeals, 84 Conn.App. 628, 638, 854 A.2d 806 (2004). "Proof of aggrievement . . . [is] an essential prerequisite to the court's jurisdiction of the subject matter of the appeal." Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). Unless the plaintiffs can establish they are aggrieved, they have no standing to appeal. Id. The court should not concern itself with any other issues unless aggrievement is established. Fox v. Zoning Board of Appeals, supra, 635.
Aggrievement is based on the status of the appellant at the time the appeal is filed, rather than at the time of trial. See Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission, 58 Conn.App. 441, 443, 445-47, 755 A.2d 249 (2000); Foran v. Zoning Board of Appeals of the Town of Westport, 158 Conn. 331, 336, 260 A.2d 609 (1969); Nichols v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. 76834 (October 6, 1987, Healey, J.) (2 C.S.C.R 1128). A plaintiff having a sufficient property interest when an appeal is taken can lose it by conveying his property interest. Southbury v. American Builders, Inc., 162 Conn. 633, 634, 295 A.2d 566 (1972). In Southbury v. American Builders, the original interest in the property had been lost by virtue of a foreclosure subsequent to the filing of the appeal. Id. In Orange Mall Shopping Center Co., LP v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 87 0023144 (February 22, 1990, Fuller, J.) (5 C.S.C.R. 288) [1 Conn. L. Rptr. 303], the court determined that since aggrievement must exist at the time the appeal is taken and the appeal must be taken within fifteen days of the date of the publication of the decision, a buyer of the property, who purchased the property after the fifteen-day appeal period had run, would not be aggrieved because any interest he might have was not affected at the time of the taking of the appeal. Id., 290. See also Nichols v. Planning Zoning Commission, supra, 2 C.SC.R. 1128. The issue of standing implicates the court's subject matter jurisdiction. Avalonbay Communities, Inc. v. Orange, 256 Conn. 557, 567, 775 A.2d 284 (2001).
In a case involving the board's review of a denial of a certificate of zoning compliance, "[t]he controlling question for the trial court is whether the zoning board acted arbitrarily or illegally or so unreasonably as to have abused its discretion . . . The discretion of the local board is a liberal one to be overturned only when the board has not acted fairly or has no valid reasons for acting as it did, or with improper motives . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision . . . Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing." (Citations omitted; internal quotation marks omitted.) Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676-77, 559 A.2d 1174 (1989).
Where a boundary line adjustment between two lots is minor, creates no additional lot, and is not made for the purpose of development, it does not constitute a subdivision of property. Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 765-66, 755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753 (2000). However, where a boundary line adjustment is significant in size and made for the purpose of development, even where no additional lot is created, it does constitute a subdivision of property. If the outcome were otherwise, this would "make a mockery of subdivision law." The Balf Co. v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV 03 0827804 (March 13, 2004, Satter, J.T.R.) (40 Conn. L. Rptr. 876, 878).
To prove a municipal estoppel claim, a plaintiff must demonstrate that: "(1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." (Internal quotation marks omitted.) Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418, 876 A.2d 540 (2005).
Discussion
Robert Walpuck, a member of the plaintiff, Stones Trail, testified at the hearing on March 27, 2008, that Stones Trail had lost its interest in the property by virtue of a foreclosure subsequent to the filing of the appeal. (3/27/08 Hearing Transcript (Tr.), p. 12.) The transcript also reveals that the plaintiff, ADC, received the property not from Stones Trail, but by "committee deed" after foreclosure by sale of the property. (3/27/08 Tr., p. 23.) As a matter of law, neither Stones Trail nor ADC is an aggrieved party. Stones Trail lacks standing because the property was conveyed during the pendency of the appeal. While ADC was added as an additional plaintiff during the pendency of the action, it cannot establish aggrievement because it had no interest in the property when the appeal was filed. The court initially thought that ADC may be aggrieved, but after further review and reflection, the court concludes that neither ADC nor Stones Trail is an aggrieved party.
There are other problems regarding the plaintiffs' claims. The one-acre lot line adjustment made by Stones Trail to Parcel D and the lot line adjustments made by Stones Trial to surrounding parcels drastically changed the size and character of the plaintiffs' lots. These adjustments also resulted in the creation of six lots from the five lots which purported to exist and were depicted on a map filed in 1998. Stones Trail, further, made these adjustments for the purpose of development. Therefore, Stones Trail was required to obtain subdivision approval.
The plaintiffs failed to prove their municipal estoppel claim because the stamp on Map #3449 does not state that the property on that map is exempt from subdivision regulations. The plaintiffs were put on notice though Assistant Town Attorney Jarboe's letter that the Town might require subdivision approval in order for them to receive building permits in the future. Stones Trail's attorney could have brought Jarboe's letter to the attention of both the title insurance company and Stones Trail's subsequent attorney. (See Return of Record (ROR), Items ##18 and 33.)
Plaintiffs erroneously maintain that they are entitled to a building permit based on another situation in Weston where the Code Enforcement Officer had written a letter stating that there was a valid building lot. In that case, the Town could not reverse its position at a later date because the Code Enforcement Officer had made that clear representation. That is unlike the situation in the present case where Jarboe represented that there had been no determination as to whether the parcels depicted on Map #3449 were valid building lots. (See ROR, Items ##18 and 31, p. 13.)
The "validating act," Special Act 99-7, is irrelevant to the present case. Section 6(a) of Special Act 99-7 does not validate any division of land as a subdivision. It only provides that land transfers cannot be invalidated because the land comprises part of a subdivision that was not submitted for approval to the appropriate municipal agency. Additionally, Section 6(b) of the Special Act (now codified as General Statutes § 8-26h) provides an exemption for buildings and structures, an exemption which does not apply to the present case.
The evidence in the record supports the Board's conclusion that a certificate of zoning compliance should not issue for Parcel D.
Order
The appeal is dismissed as to Stones Trail, LLC because it is unable to establish aggrievement since it no longer has an interest in the property that is the subject of the appeal.
The appeal is dismissed as to ADC-10 Ladder Hill, LLC because it is unable to establish aggrievement since it had no interest in the property that is the subject of the appeal at the time the appeal was filed.
Nevertheless, even if the plaintiffs were aggrieved, the appeal fails. The Board acted after a full and fair hearing in accordance with the Zoning Regulations and applicable State statutes based on the evidence before it. The plaintiffs have failed to prove that the Board acted arbitrarily, illegally or in abuse of its discretion in rendering its decision. The Zoning Board of Appeal's decision is upheld and the appeal is dismissed.
So ordered.