Opinion
No. CV-08-4010565
September 29, 2009
MEMORANDUM OF DECISION
I. Facts
In the present action, the plaintiff, Harlan Denny seeks a declaratory judgment that he can construct a public road over a long existing paper road that is located on land individually owned by the defendants, James and Susan Brennan and the other defendants in this action, Cesare and Josephine Tomei. The Brennans move to dismiss the declaratory judgment action claiming that Denny lacks standing thereby depriving the court of subject matter jurisdiction. For the reasons hereinafter discussed, the motion to dismiss is granted.
The terms "paper road" and "paper street" are often used to describe streets that appear in maps filed on land records, but which do not, in fact, physically exist on the ground. See E. Sostman J. Anderson, "The Highway the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private Proposed Roads From Establishment to Abandonment," 61 Conn. B.J. 299, 335 (1987).
The following facts are not in dispute. Denny, the Brennans and the Tomeis are the owners of separate and contiguous residential properties in the Town of Orange. The Tomeis' parcel is located at 118 Cricket Lane. The Brennans' parcel is located at 112 Cricket Lane and abuts the westerly portion of the Tomeis' property. The Tomeis and Brennans have access to their land by way of Cricket Lane, a public road that parallels the southern boundary of their properties. Denny's property is located at 422 Dogwood Road and abuts the northern boundary of the properties owned by the Tomeis and Brennans. Denny's parcel is accessible by Dogwood Road, a public road.
David Grillo was a predecessor in interest, and a common grantor, to the Tomeis and the Brennans. On October 3, 1961, Grillo filed a subdivision map ("the Grillo map") in the land records of the Town of Orange. Thereafter, he submitted to the Plan and Zoning Commission ("the Zoning Commission") a subdivision plan that was subsequently accepted by it. The plan created several lots, including those presently owned by the Tomeis and the Brennans, and also dedicated of a portion of land in the subdivision to the Town of Orange for the purpose of creating public roads. One of the dedicated parcels on the Grillo map was noted as "reserved for future highway purposes." This parcel is a strip of land that bisects the Brennans' and the Tomeis' properties and abuts the southerly portion of Denny's property. It is undisputed that this dedication has never been formally accepted by the Town of Orange. However, if the Town of Orange were to accept the dedication for the purpose of building a public street, it would connect Denny's property to the existing public road named Cricket Lane. In other words, the Town's acceptance of the subject dedicated parcel would provide Denny with an alternate road to access his property at 422 Dogwood Road. As will be later discussed, this fact is important as Denny is seeking to subdivide his property and to provide access to the two-lot subdivision by way of Cricket Lane to Christmas Tree Lane.
In his supplemental memorandum of law, Denny states that the dedication "has not yet . . . been accepted as a Town road."
The rights and interests of persons in this dedicated strip of land have been the subject of prior litigation. See Bartocetti v. Denny, Superior Court, judicial district of New Haven, Docket No. CV 90 301390 (May 28, 1992, Hodgson, J.) ( 6 Conn. L. Rptr 489). In Bartocetti, the plaintiffs, Harry and Annette Bartocetti (predecessors in interest to the Brennans) and Cesare and Josephine Tomei, brought an action to quiet title to the dedicated strip of land and named Denny, Grillo and the Town of Orange as defendants. Id., 490. The plaintiffs moved for summary judgment against Grillo claiming that there was no factual question that they had obtained title to the strip of land by way of adverse possession, which motion was granted by the court (Celotto, J.). Id. Thereafter, an issue as to whether the plaintiffs validly revoked the dedication of the strip of land made by Grillo in 1961 was referred to an attorney trial referee for determination. Id. The referee found that the plaintiffs, as successors to Grillo, validly revoked his offer to dedicate the land for future highway purposes by filing a Notice of Revocation of Dedication on the Town of Orange land records. Id.
Certain objections were filed to the factual findings and legal conclusions contained in the report of the referee. Id. In considering the objections, Judge Hodgson found "that the referee erred in his legal conclusion that the filing of a Notice of Revocation of Dedication on the town land records was sufficient to achieve a revocation of the dedication of the land at issue for use as a future highway." Id., 491. Judge Hodgson expressly found that the attempted revocation was invalid because any such revocation required the approval of the local zoning commission, which had not been obtained. Id. Further, concerning Denny's assertion that he had standing in the action in accordance with General Statutes § 13a-55, Judge Hodgson found that the referee correctly concluded that the abandoned highway statute, § 13a-55, was inapplicable to the facts of the case and did not provide Denny with standing to challenge the Bartocettis' and the Tomeis' title in the dedicated strip of land. Id., 492. In so doing, Judge Hodgson effectively ruled that § 13a-55 only provides standing to the owners of land that abuts discontinued or abandoned highways, and that land dedicated for future use as a public highway necessarily cannot be "discontinued or abandoned" until it has been accepted. Id. Under the circumstances, she determined that Denny could not rely on the statute to assert an interest in the dedicated strip of land so as to demonstrate standing. Id.
Specifically, Judge Hodgson reasoned that the revocation attempted by the Tomeis and the Bartocettis constituted a "resubdivision" pursuant to General Statutes § 8-18, which "defines [the term] `resubdivision' as `a change in a map of an approved or recorded subdivision if such change (a) affects any street layout shown on such map, [or] (b) affects any area reserved thereon for public use.'" Bartocetti v. Denny, supra, 6 Conn. L. Rptr. 491. She then noted that General Statutes § 8-26 mandates that "`[a]ll plans for . . . resubdivisions . . . shall be submitted to the [planning and zoning] commission with an application in the form to be prescribed by it.'" Id. Upon holding that "a dedication by plot can be revoked only by proceeding in accordance with the provisions of the plot act," she concluded that, pursuant to § 8-26, any valid revocation of the dedication required the approval of the Zoning Commission. (Internal quotation marks omitted.) Id. To hold otherwise, she reasoned, would be to allow a landowner to unilaterally revoke an offer of dedication soon after receiving approval for a subdivision plan, even where the dedication may have been essential to the subdivision plan's acceptance. Id.
General Statutes § 13a-55 provides: "Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway."
As discussed, the parties to the present action agree that, to date, the paper road shown on the Grillo map has been neither accepted by the Town of Orange nor has its dedication been properly revoked by the Tomeis and the Brennans (or the Brennans' immediate predecessors in interest, the Bartocettis). It simply remains a parcel of land subject to acceptance. Notwithstanding, in June 2008 the Zoning Commission accepted a subdivision application filed by Denny that, in part, concerns the dedicated strip. The subdivision map that accompanied Denny's application ("the Denny map"), also filed on the land records, shows a division of Denny's parcel into two new lots. The plan shows the two new lots gaining access to Cricket Lane by constructing a road named "Christmas Tree Lane" that would extend northward from Cricket Lane and adjoin the southern boundary of Denny's parcel. The proposed location of Christmas Tree Lane is over the dedicated strip of land marked "reserved for future highway purposes" on the Grillo map. Stated another way, Christmas Tree Lane would be constructed over the strip of land acquired by the Tomeis and the Brennans by way of adverse possession judicially established approximately seventeen years ago.
Denny commenced the present action on September 19, 2008. He seeks a declaratory judgment from this court stating that he has a right "to enter upon the land `reserved for [future] highway purposes' to the north of Cricket Lane as shown on the Grillo . . . [m]ap for the [purpose of] construct[ing] . . . Christmas Tree Lane as shown on the Denny . . . [m]ap." As discussed, Denny admits that the Town of Orange has not yet accepted the dedication. Instead, he alleges in support of his application that, "[o]n June 18, 2008 . . . the Town of Orange Board of Selectmen . . . voted to affirmatively express its intent to accept [the dedication] as a public highway upon its improvement by Denny in conformity with the [Town of Orange's] road standards." (Emphasis added.)
It should be noted that, although Denny's prayer for relief also seeks a judicial declaration that the Town of Orange's rights and interests in the dedicated strip of land are superior to those of the Tomeis and the Brennans, the Town of Orange has not been made a party to this action. As such, this memorandum of decision is only intended to address the rights and interests that the named parties have in the dedicated land.
The Brennans filed a motion to dismiss and accompanying memorandum of law claiming that the court lacks subject matter jurisdiction to entertain the declaratory judgment action because Denny does not have standing in the action. Denny filed an objection to the motion to dismiss.
II. Discussion
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing . . . 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." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518-19, 970 A.2d 583 (2009). The Supreme Court has stated that "[t]wo broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Id., 519.
In view of Judge Hodgson's previous ruling in Bartocetti v. Denny, supra, 6 Conn. L. Rptr. 489, Denny cannot, and does not, claim that he has statutory standing to pursue the present action pursuant to § 13a-55. Rather, Denny asserts that he has standing because he is classically aggrieved. "[T]he fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 519.
The Brennans claim that Denny does not have the interest in the dedicated strip of land over which he wants to construct Christmas Tree Lane necessary to confer standing. As discussed, that land was the subject of an adverse possession claim resolved against Denny and in favor of the Tomeis and the Bartocettis, predecessors in interest to the Brennans. It is indisputable that the Tomeis and the Bartocettis own the dedicated strip of land subject to Grillo's dedication of it in 1961 to the Town of Orange. Denny asserts in the present action that as a landowner whose property abuts a dedicated but unaccepted road he has an implied easement over the "paper street" that provides him with the specific personal and legal interest necessary to give him standing in the present action. In support of this contention, Denny cites to the following related line of cases: Lucy v. Oram, 114 Conn. 642, 159 A. 655 (1932); Whitton v. Clark, 112 Conn. 28, 151 A.2d 305 (1930); and Derby v. Alling, 40 Conn. 410 (1873). The court will address those decisions in determining whether, as claimed by Denny, they support his claim that he is classically aggrieved for the purpose of standing in the action.
In Derby, the plaintiffs, the Town of Derby and the Borough of Birmingham, sought to enjoin the defendants from erecting a building on Third Street in the then village of Birmingham, which street was alleged to be a public street. Derby v. Alling, supra, 40 Conn. 431. Prior to 1834, the lands that originally formed the Borough of Birmingham, now the City of Derby, were farm lands mostly owned by Anson Phelps and Sheldon Smith. Id. Phelps and Smith were the defendants' predecessors in interest. Id. Between 1834 and 1837, Phelps and Smith prepared a map of Birmingham and the streets within its limits. Id. The map was kept in the office of the Birmingham Water Works. Id. In 1843, Phelps and Smith deeded to the Town of Derby a portion of land in Birmingham bounded by certain streets that the town formally resolved to make public highways on the condition that Phelps and Smith conveyed them to the town. Id., 432. The deed recited the following concerning the streets: "For more particulars relative to the above named streets, see map in the office of the Birmingham Water Works." Id. Third Street was in existence at the time the land was conveyed to the town, but not used for public travel to the extent it was at the time of the 1873 appeal. Id.
One issue on appeal concerned the extent of Third Street as construed in the deed. The defendants, seeking to limit the length and public use of the street in order to keep some land for their use, claimed that the extent of Third Street was to be determined by how it was used for travel at the time of the deed. Id. The plaintiffs asserted that Third Street extended as far as shown on the original map of Birmingham, which was farther than the length of the road used for travel at the time of the deed. Id. The court stated as follows: "On this point we think the [defendants] are clearly wrong. The map is expressly referred to in the deed, and by reference is made part of it. We think therefore that the deed must be construed as embracing all the land which is included within the limits of the street as delineated on the map.
"Where the owner of village property makes and publishes a map of it, with streets distinctly delineated, and then sells lots bounded on these streets, he comes under obligation to his vendees to open the streets to the public; the precise extent of the obligation being dependent on the particular circumstances of the case." Id.
Derby v. Alling, supra, 40 Conn. 410 is one of the earliest cases to discuss the existence of common-law easements by implication arising from maps referenced in deeds. The common law set forth in the decision that a map referenced in a deed becomes part of the deed became codified in General Statutes § 7-31, which provides in pertinent part as follows: "When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto, and may be produced in court accordingly . . ." See E. Sostman J. Anderson, supra, 61 Conn. B.J. 337 n. 201.
The Whitton case involved an action by the plaintiff to quiet title to an approximately twenty-acre tract of certain real property that he owned in the Glenbrook section of Stamford. Whitton v. Clark, supra, 112 Conn. 29. The plaintiff created and filed maps of the subject property delineating lots and streets. Id., 30. Over the period of a few years, the plaintiff conveyed by deed some of the lots, and the deeds contained certain restrictions including that a residential dwelling had to be built at a certain cost. Id., 30-31. The plaintiff sought "an adjudication against the defendants who claim to own other lots in the tract that he has an unencumbered title not merely to the lots in the triangular area but also to the land within the bounds of the unnamed street between them and the railroad right of way and to a portion of the area into which it opens on the south, which forms a continuation of Union Street beyond the easterly boundary of Cottage Avenue as far as that right of way, and also that none of the lands owned by him are burdened with restrictions upon their use arising out of the stipulations in the deeds to the lot owners of the tract." Id., 32. The Supreme Court stated that "[w]ith reference to the first claim, the law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands . . . The courts are in decided conflict as to the extent to which any lot owner can claim that the streets plotted upon the map must remain subject to be opened for use. Some courts hold that he has a right to require this as to all streets plotted on the map . . . Others restrict his right to such streets or parts of streets as give him access to some other public way." (Citations omitted.) Id., 32-33. The Court in Whitton expressly opined that this legal principle was based on either a theory of estoppel or implied covenant. Id., 33-34. The Court recognized that the grantee's rights against the party restricting his access to the dedicated streets were limited by whether there was a benefit to the grantee arising from the streets at issue. Id. "If the doctrine in question be rested upon estoppel . . . there is no sound reason to extend it as regards any lot owner to include streets which in any situation reasonably to be anticipated would not prove beneficial to him and from the deprivation of which he would suffer no injury . . . Or, if it be rested upon an implied covenant, as is sometimes stated, there is no occasion to extend that covenant beyond a situation which could in reason have furnished an inducement to the purchase of the lot because of some benefit to accrue to it." (Citations omitted.) Id.
The claim was brought by the executrix of the named plaintiff, who died prior to the Supreme Court's opinion. Whitton v. Clark, supra, 112 Conn. 29.
The principle set forth in Whitton has become well-established. "[W]here an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands . . . The sole limitation upon that right is that the street or highway must be of benefit to the lot owner. Gerald Park Improvement Assn., Inc. v. Bini, 138 Conn. 232, 236, 83 A.2d 195 (1951); see also Lake Garda Co. v. D'Arche, 135 Conn. 449, 453-54, 66 A.2d 120 (1949); Merino v. George F. Fish, Inc., 112 Conn. 557, 560, 153 A. 301 (1931); Whitton v. Clark, supra, [ 112 Conn.] 33; Gemmell v. Lee, 59 Conn.App. 572, 575-76, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000)." (Citation omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Ass'n., Inc., 93 Conn.App. 759, 771, 890 A.2d 645 (2006).
The benefit analysis set forth in Whitton was applied by the Supreme Court in Lucy v. Oram, supra, 114 Conn. 642, which affirmed the judgment of the trial court enjoining the defendants from obstructing a boulevard near the beach that the plaintiffs used as a walkway along the shore and to park their cars. Id., 645. The Court agreed with the trial court's reasoning that "it clearly appears that the part of Mago Boulevard obstructed was of benefit to the plaintiffs, and under such circumstances they were entitled to an injunction against the closing of the street complained of." (Emphasis added.) Id., 647.
Those cases and their progeny are distinguishable from the facts of the present case. The implied easements in those cases arose in circumstances where the lot owners acquired their lots from, or could trace their acquisition to, a common grantor that (1) made a map showing the newly-created lots and dedicated paper road, and then (2) transferred those lots by deeds that referred to the map. See, e.g., Perkins v. Fasig, 57 Conn.App. 71, 77, 474 A.2d 54 (citing Whitton for the proposition that "[i]f a grantor promulgates a general plan for the development of a tract and the plan designates streets by which the lots on the plan may be reached, the lot owners have an enforceable right to use the street to reach their lots" (emphasis added)), cert. denied, 253 Conn. 925, 754 A.2d 797 (2000).
In the present matter, the Tomeis and the Brennans have a common grantor in Grillo, the developer of their subdivision. Significantly, the property owned by Denny is not in Grillo's chain of title. Denny's parcel of land is not, and never was, included in the subdivision created by Grillo. As a result, Denny cannot properly claim an implied easement over the paper road under the common law set forth in cases like Whitton and Lucy, regardless of how beneficial access to such a road would be to his property. Unless and until the Town of Orange validly accepts the Grillo dedication, Denny has no right to access his land by virtue of the dedicated paper road owned by the Tomeis and the Brennans. Therefore, Denny does not have the "specific personal and legal interest" in the land over which he proposes construction of Christmas Tree Lane that is required to demonstrate classical aggrievement. As a result, Denny lacks standing to prosecute the declaratory judgment, and the court does not have subject matter jurisdiction to entertain his claim.
III. Conclusion
For the foregoing reasons, the Brennans' motion to dismiss (102.00) is granted.