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The syllabus and procedural history accompanying the opinion as it appears
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HANDSOME, INC. v. PLANNING & ZONING COMMISSION—DISSENT
PALMER, J.
PALMER, J., dissenting.
In rejecting the trial court’s conclusion, the majority refuses to address that court’s factual findings with respect to the import of Handsome’s agreement with MD Drilling, concluding that the trial court did not actually rely on the agreement as a basis for finding that Handsome was aggrieved, and that Handsome has failed to adequately brief the issue in this court. See footnote 7 of the majority opinion. As I explain more fully hereinafter, both of these conclusions are demonstrably incorrect: The plaintiffs’ brief to this court explains exactly why the trial court properly relied on the agreement between Handsome and MD Drilling in concluding that Handsome’s interest in the subject property is sufficient to demonstrate aggrievement. Moreover, the only plausible reading of the trial court’s decision is that the trial court did rely on the agreement in finding that Handsome was aggrieved.2 Thus, even if it had not briefed the issue, Handsome, as an appellee in this appeal, does not carry the burden of demonstrating the correctness of the trial court’s decision; rather, the commission bears the burden of establishing that the decision was incorrect, and it cannot meet that burden.
Instead of considering the issue of aggrievement in light of Handsome’s undisputed interest in the property, as reflected in its agreement with MD Drilling—as the
The facts relevant to the trial court’s determination that Handsome was aggrieved by the commission’s decision are not in dispute, and may be summarized briefly as follows. Todd Cascella and Mona Cascella are the president and secretary, respectively, of Handsome. Todd Cascella transferred the subject property, 125 Garder Road in the town of Monroe, to Handsome by way of a quitclaim deed, which was recorded in the town land records on November 13, 2001. Handsome subsequently applied for a special permit to construct a 20,000 square foot industrial building on the property, which the commission granted subject to an expiration date of May 15, 2008. Prior to 2008, however, the vast majority of Handsome’s business involved the sale of sand and gravel excavated from the property to federal, state and locally funded road projects. The actual excavation work was done by another company, Cascella & Son Construction, Inc. (Cascella & Son), which is owned by Todd Cascella.
In March, 2006, MD Drilling brought an action against Handsome and Cascella & Son, seeking to foreclose on a mechanic’s lien that it had filed on the property. On December 29, 2009, after a trial, the court, Mintz, J., rendered a judgment of strict foreclosure in favor of MD Drilling. At that time, the court found the fair market value of the property to be $542,000 and Handsome’s debt to MD Drilling to be $27,271.55. The court originally set March 2, 2010, as the law day but subsequently granted a motion for an extension and postponed the law day until June 29, 2010.
As the majority explains, during the pendency of the foreclosure action, Handsome sought an extension of the permit at issue in this appeal. The commission denied the requested extension on April 24, 2008, and the plaintiffs appealed to the Superior Court. On September 9, 2010, the court, Hon. Howard T. Owens, Jr., judge trial referee, sustained the plaintiffs’ appeal and ordered the commission to grant the extension. The commission did not appeal from that decision. In October and November, 2010, Handsome submitted written requests to the commission seeking its approval of the permit extension in accordance with the court’s decision. The commission finally addressed the matter at its meeting on May 5, 2011. After first entering executive session, the commission eventually reconvened the meeting and granted the extension, albeit with several conditions. Although the commission approved the extension for five years, it made the approval retroactive to March 20, 2008, such that the permit would have expired on March 20, 2013, less than two years from the date on which it was granted.
The plaintiffs again appealed from the commission’s decision to the Superior Court. The commission moved to dismiss the appeal, claiming, inter alia, that Handsome was not aggrieved by its decision because it no longer held title to the property in light of the judgment in MD Drilling’s foreclosure action. The plaintiffs objected to the commission’s motion
After an evidentiary hearing on July 26, 2012, following which the court entertained extensive argument by counsel both on aggrievement and on the merits of the appeal,5 the trial court issued its memorandum of decision on December 21, 2012, in which it again rejected the commission’s argument that Handsome lacked standing to challenge the commission’s decision for lack of aggrievement. The court stated that, because MD Drilling has never recorded a certificate of foreclosure in the Monroe land records, Handsome, ‘‘as [the] record owner of the property at 125 Garder Road, [was] aggrieved by the [commission’s] decision . . . .’’ The court also observed, however, that the agreement between Handsome and MD Drilling ‘‘provides that the [foreclosure] judgment ‘[would] be null and void when the . . . debt [was] satisfied,’ ’’ Handsome ‘‘[was] not in default of the agreement, and . . . monthly payments as required by the [agreement] . . . [had] been made.’’ The court further stated that ‘‘[t]he fact that [the] agreement [between Handsome and MD Drilling] provide[d] for a mechanism for satisfying the judgment of strict foreclosure [and expressly authorized Handsome to remain on the property], solidifie[d] and enhance[d] Handsome’s interest in the property.’’ The court also explained that ‘‘[t]he judgment of strict foreclosure [rendered] in favor of MD Drilling . . . [was] not sufficient to deny aggrieved status to Handsome’’ because ‘‘[l]egal title to property is not required in order for a party to satisfy the test for aggrievement.’’
The court next proceeded to analogize the present case, in which Handsome retains both possession and the right to regain ownership of the property, to other cases in which the party found to be aggrieved did not hold legal title to the property at issue. Citing first to Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 114 A.2d 216 (1955), in which this court reiterated the principle that ‘‘[t]he party in possession is regarded by the law as the owner, except in a contest with one who has the true title’’; (internal quotation marks omitted) id., 355; the trial court then stated as follows: ‘‘Aggrievement has been found [when] a party was a contract purchaser; Shapero v. Zoning Board, 192 Conn. 367, 376 [472 A.2d 345] (1984); had obtained an oral contract to enter into a long-term
Having concluded that Handsome was aggrieved by the commission’s decision, the court turned to the merits of the appeal. The court sustained the appeal, concluding both that the commission lacked authority to impose certain additional conditions on the permit as a condition of the extension and that the commission improperly had approved the extension retroactively to March 20, 2008. This appeal by the commission followed.
‘‘[P]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiff’s appeal. . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.’’ (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 664. As the majority has explained, ‘‘[t]he fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], 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 this specific personal and legal interest has been specially and injuriously affected by the [challenged action].’’ (Internal quotation marks omitted.) Part II of the majority opinion, quoting Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868 (2008). ‘‘If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.’’ (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 395.
We often have stated, however, that ‘‘[s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that] he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.’’ (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
Furthermore, it is well established that a person need not be the owner of the subject property to demonstrate that he or she is aggrieved by the decision of a planning and zoning commission. See, e.g., Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93–95, 558 A.2d 646 (1989). Rather, a person is aggrieved by such a decision as long as he is ‘‘attempt[ing] to vindicate arguably protected interests.’’ (Emphasis added; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 393. We previously have explained, moreover, that there is no ‘‘precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party [in a zoning appeal] . . . . Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends [on] the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal . . . .’’ (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 666. Consistent with these principles, cases addressing whether a nonowner is aggrieved by a zoning decision have applied a flexible standard for determining aggrievement to ensure that parties who have an interest in the property at issue can challenge that decision. In such cases, we have recognized that, to establish aggrievement, a party need not have a formal, legally enforceable agreement with the landowner. Instead, we have looked to whether the facts establish that the party claiming aggrievement has ‘‘a substantial and legitimate interest in the property . . . .’’ (Internal quotation marks omitted.) Id., 670.
In Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 660, for example, we concluded that the named plaintiff, Manuel Moutinho, was aggrieved by the defendant planning and zoning commission’s denial of his applications to build an asphalt plant on property owned by a third party, notwithstanding the trial court’s finding that Moutinho’s agreement with the landowner was legally unenforceable. See id., 662, 668–70. Although Moutinho had no ownership or leasehold interest in the property, he had a long-standing oral agreement with the property owner to enter into a long-term lease if the commission approved his applications to build the asphalt plant. Id., 662–63. After the planning and zoning commission denied the applications, Moutinho appealed to the trial court, which concluded that he was not aggrieved because the oral agreement between him and the owner violated the statute of frauds,
In Moutinho, we relied on DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991); see Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 668–69; in which the Appellate Court concluded that the plaintiff Richard DiBonaventura, Jr., was aggrieved by the decision of the defendant zoning board of appeals (board) denying his application for a certificate of approval to operate a used car dealership on property owned by DiBonaventura’s father. DiBonaventura v. Zoning Board of Appeals, supra, 370–72, 376–77. Although DiBonaventura had his father’s consent to use the property for the planned car dealership, he had no ownership or leasehold interest in the property. See id., 376. In light of DiBonaventura’s lack of a legally enforceable interest in the property, the trial court concluded that he was not aggrieved by the board’s decision. Id., 373. The Appellate Court reversed the judgment of the trial court, concluding that DiBonaventura’s informal agreement with his father, coupled with the fact that he was to be the owner of the business operating on the property if the application was approved, was sufficient to establish aggrievement. Id., 376–77. DiBonaventura exemplifies the principle that the aggrievement requirement is not intended to keep a party out of court, as long as that party has a specific, personal stake in the matter. ‘‘While in a strict sense [DiBonaventura] may not have [had] a legally enforceable interest in the subject property, his interest [was] readily distinguished from a general interest, such as is the concern of all members of the community as a whole.’’ Id., 376. The court further observed that ‘‘the trial court’s decision that neither [DiBonaventura nor his father was] aggrieved [was] an overly technical application of the test for aggrievement.’’ Id., 377.
In accord with Moutinho and DiBonaventura, Connecticut courts consistently have applied a flexible and pragmatic standard when called on to decide whether a nonowner’s interest in property is sufficient to establish aggrievement. See, e.g., Primerica v. Planning & Zoning Commission, supra, 211 Conn. 93–95 (plaintiff who sold property during pendency of appeal but leased portion of property from new owner was aggrieved); RYA Corp. v. Planning & Zoning Commission, 87 Conn. App. 658, 664–67, 672, 867 A.2d 97 (2005) (corporation acting as agent for nonowner developer of land who had agreement with landowner was aggrieved by denial of subdivision application); Goodridge v. Zoning Board of Appeals, supra, 58 Conn. App. 767 (plaintiff who held $60,000 mortgage on property after selling parcel to owner was aggrieved); Charles F. Nejame Co. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV-01-0342359-S (November 8, 2001) (30 Conn. L. Rptr. 685, 686–87) (plaintiff who used property with landowner’s permission and had oral agreement to enter into lease if challenge to cease and desist order was successful was aggrieved). These cases underscore the oft cited principle that ‘‘[t]he concept of standing as presented . . . by the question
In light of the foregoing case law, it is readily apparent that Handsome was aggrieved by the commission’s decision. Even though legal title to the property passed to MD Drilling, Handsome retained a valuable interest in the property. The agreement with MD Drilling expressly permits Handsome to retain possession of the property, and it further provides that, upon timely payment of the debt owed to MD Drilling, the judgment of strict foreclosure will be voided and ownership of the property will revert to Handsome.7 As the trial court found, Handsome was in compliance with the terms of the agreement. In such circumstances, it could be hardly clearer that Handsome’s interest in the property is more than sufficient to satisfy the aggrievement requirement. In fact, in light of the agreement between Handsome and MD Drilling, and the court’s finding that Handsome was in compliance with the agreement, Handsome has established aggrievement as a matter of law, such that the trial court could not reasonably have reached any other conclusion.
In rejecting the trial court’s resolution of the aggrievement issue, the majority makes no attempt to explain why Handsome’s agreement with MD Drilling is insufficient to support the trial court’s determination that Handsome was aggrieved. Indeed, the majority fails altogether to acknowledge the long line of cases establishing that legal title to property is not required to establish aggrievement and sidesteps the trial court’s express findings concerning Handsome’s agreement with MD Drilling and the obvious import of that agreement on the issue of aggrievement. As this court previously has observed, we will not disturb a trial court’s conclusion with respect to aggrievement unless it is ‘‘unsupported by the subordinate facts or otherwise violate[s] law, logic or reason.’’ (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003). In the present case, because the facts fully support the trial court’s finding of aggrievement, and because that finding is sound as a matter of law, the majority has no justification for vacating the trial court’s judgment.
Instead of reviewing the trial court’s factual findings to determine whether those facts are legally sufficient to establish aggrievement, the majority focuses only on the trial court’s reliance on Handsome’s status as the record owner of the property and concludes that the present case is essentially indistinguishable from Southbury v. American Builders, Inc., 162 Conn. 633, 295 A.2d 566 (1972), a two page per curiam decision in which we summarily dismissed the appeal of the parties claiming to be aggrieved because they themselves had ‘‘acknowledged that they no longer had any interest in the premises in question because of a foreclosure subsequent to [the] appeal.’’ (Emphasis added.) Id., 634. As the majority acknowledges, however, Southbury stands only for the proposition that a party may not maintain an appeal if its ‘‘appealable interest in a controversy’’ is lost after judgment. (Emphasis added.) Id.; see footnote 6 of the majority opinion. In the
The majority seeks to justify its refusal to address the trial court’s finding that Handsome’s agreement with MD Drilling creates an interest in the property sufficient to establish aggrievement by claiming that Handsome’s possessory interest in the premises as a result of the agreement was not a basis of the trial court’s decision and that the plaintiffs did not adequately brief the issue on appeal. The majority specifically asserts that the argument is made ‘‘in a mere three lines of the plaintiffs’ appellate brief and is unaccompanied by any supporting analysis or citation to relevant legal authority’’ and that the plaintiffs failed to make the argument ‘‘as an alternative ground for aggrievement.’’ Footnote 7 of the majority opinion. Both of these contentions are baseless.8 First, it is clear that the trial court relied on Handsome’s agreement with MD Drilling in support of its aggrievement determination. Because the commission, as the appellant, is challenging that determination, we necessarily must address the trial court’s findings with respect to the agreement, regardless of the adequacy of the plaintiffs’ briefing of the issue. Second, even if Handsome could not prevail unless the plaintiffs adequately addressed the issue of the trial court’s reliance on the agreement between Handsome and MD Drilling, the plaintiffs’ briefing with respect to the significance of Handsome’s agreement with MD Drilling is perfectly sufficient for appellate review. I address these points in turn.
With respect to the majority’s contention that the trial court did not rely on Handsome’s agreement with MD Drilling as a basis for finding that Handsome was aggrieved, any fair reading of the trial court’s decision belies such a claim.9 Thus, the majority’s claim that Handsome cannot prevail on appeal because the plaintiffs have not adequately briefed the issue of why Handsome’s agreement with MD Drilling supports the trial court’s aggrievement determination improperly places the burden on the plaintiffs to prove the correctness of the trial court’s ruling. It is axiomatic that ‘‘[t]he burden rests [on] the appellant to show that there was error in the judgment from which the appeal is taken . . . .’’ Schwarzschild v. Martin, 191 Conn. 316, 326, 464 A.2d 774 (1983). As the appellant in the present appeal, the commission bears the burden of demonstrating that the trial court’s conclusion regarding aggrievement was factually or legally incorrect. It is apparent that the commission cannot meet that burden. As I discussed previously, the trial court determined that ‘‘[t]he judgment of strict foreclosure [rendered] in favor of MD Drilling . . . [was] not sufficient to deny aggrieved status to Handsome’’ because ‘‘[l]egal title to property is not [required]
Finally, at oral argument before this court, the plaintiffs’ counsel addressed the aggrievement issue extensively in response to questioning from panel members. In his detailed responses, counsel explained, once again, that property ownership is not a necessary prerequisite to aggrievement and, further, that Handsome was aggrieved by virtue of its agreement with MD Drilling under which it retains a possessory interest in, and the right to regain title to, the property. Counsel for the commission did not challenge these arguments but maintained, rather, that, for pleading purposes, the plaintiffs had relied solely on Handsome’s status as the record owner of the property. That is no answer to Handsome’s claim of aggrievement in view of the fact that the commission had ample notice of the plaintiffs’ subsequent reliance on Handsome’s agreement with MD Drilling. Indeed, the commission makes no claim that it was prejudiced in any way by the trial court’s consideration of the agreement for purposes of its aggrievement determination.10
It bears emphasis, moreover, that the plaintiffs consistently have argued both that Handsome is the record owner of the property and that, in any event, ownership of the property is not required to establish aggrievement. The plaintiffs first raised this latter argument in their objection to the commission’s pretrial motion to dismiss for lack of aggrievement. At that time, the plaintiffs expressly argued that ‘‘[p]roof of aggrievement does not require proof of an ownership interest in the premises.’’ In support of this claim, the plaintiffs cited no fewer than seven cases, including this court’s decision in Moutinho, arguing, inter alia, that ‘‘the [commission’s] entire argument is premised on the false assumption that the appellant must be the owner in fee simple of the property involved in the decision in order to be able to prove aggrievement. Nothing could be further from the truth.’’ Finally, the plaintiffs relied on Handsome’s agreement with MD Drilling to demonstrate why, in the present case, ownership is not a necessary
Because the majority addresses only whether Handsome was aggrieved as the
In sum, the majority’s conclusion that Handsome was not aggrieved effectively deprives Handsome of its right to challenge a decision that may very well force it out of business—and one that the trial court already has found to be unlawful—without any legal or factual basis for denying Handsome that right.13 Our cases are clear that the purpose of the aggrievement requirement is not to close the courthouse door to a party whose rights are substantially affected by a zoning decision but, rather, to ensure that only those parties who have a genuine and legitimate interest in the decision can challenge it in court. Handsome most certainly has ‘‘a personal stake in the outcome of the controversy . . . [that] provides the requisite assurance of concrete adverseness and diligent advocacy’’; (internal quotation marks omitted) Broadnax v. New Haven, supra, 270 Conn. 153; which is all that is required to establish aggrievement. Consequently, the trial court correctly determined that Handsome was aggrieved by the commission’s decision, and, therefore, this court is obligated to consider and decide the merits of the commission’s appeal.14 Accordingly, I dissent.