Opinion
No. SPCV 03 0196430
April 18, 2005
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiffs, Field Point Park Association, Inc. (the Association), Carl N. Graff, Philip B. Korsant and Catherine N. Korsant appeal from a decision of the defendant, the Greenwich Planning and Zoning Commission (the commission), in which it approved the application of the defendant, Henry Pascarella, trustee, to construct a new single-family dwelling, a swimming pool and related structures at Lot A, 110 Field Point Circle, Greenwich, Connecticut.
II. BACKGROUND
On November 15, 2002, the applicant requested the commission's approval for a coastal site plan to construct a new single-family dwelling, a swimming pool and related structures at Lot A, 110 Field Point Circle, Greenwich, Connecticut. (Return of Record [ROR], Exhibit [Exh.] 1.) The commission conducted public hearings on the application on January 7 and 21, February 11, May 20 and June 10, 2003. (ROR, Exhs. 10, 15, 26 and 53.) The application was approved, with modifications, on June 10, 2003. (ROR, Exh. 58.) The plaintiffs filed this appeal with the Superior Court on August 5, 2003, alleging that the commission's approval of the application was arbitrary, illegal and an abuse of discretion. The court, Wilson, J., conducted the trial on October 27, 2004.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A. Aggrievement
General Statutes § 8-8(a)(1) provides that: "In the case of a decision by a combined planning and zoning commission . . .' 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." "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement is an issue of fact . . . and credibility is for the trier of facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
At the trial, Graf submitted a certified copy of a deed showing his ownership of the property known as 115 Field Point Circle (Plaintiffs' Exh. 2.), and testified that he purchased the property in March 1966, has owned it continuously since then and continues to own it. (Trial Transcript [Tr.], p. 19.) Graf also submitted a certified copy of a map from the Greenwich land records demonstrating that his property abuts the subject property. (Plaintiffs' Ext. 3.) Finally, the defendants stipulated that Graf is the owner of 115 Field Point Circle and that it abuts the subject property. Accordingly, this court finds that Graf has pleaded and proved statutory aggrievement.
Also at trial, Korsant submitted into evidence a certified copy of a deed showing that Edward F. Rodenbach, trustee of the Waters Edge Trust, is the owner of the property known as 120 Field Point Circle. (Plaintiffs' Exh. 5.) Korsant also submitted into evidence a copy of the Waters Edge Trust, which demonstrated that Korsant is the settlor and sole beneficiary of the trust. (Plaintiffs' Exh. 4.) Korsant also referred to the map submitted as Plaintiffs' Exhibit 1 to demonstrate that 120 Field Point Circle abuts the subject property. Korsant testified that he created the trust, that he is its sole beneficiary, that it is revocable by him at any time, that he provided all of the consideration for the purchase of the property, that he lives on the property, that he pays the taxes on the property, that he is paying the cost of construction for the house currently being built on the property and that if the value of the property were to decline, he would realize the loss. (Tr., pp. 24-28.) Furthermore, the trust gives Korsant the exclusive, rent-free right of possession, imposes no restrictions on the use of the land, entitles Korsant to any profits generated by the sale of the property and provides that, upon Korsant's death, the property shall be disposed of as part of his estate. (Plaintiffs' Exh. 4.) The defendants did not contradict Korsant's evidence or testimony, but argued that he is not statutorily aggrieved because Edward F. Rodenbach is the owner of the property for purposes of § 8-8(a)(1) and that the beneficiary of a trust is not an owner for purposes of § 8-8(a)(1).
The Connecticut appellate courts have not addressed whether a trust beneficiary is an owner for purposes of aggrievement under § 8-8(a)(1). In a similar case, however, both the Appellate Court and the Supreme Court took a liberal approach in determining whether a life tenant was an owner under the statute. In Smith v. Planning Zoning Board, 3 Conn.App. 550, 553, 490 A.2d 539 (1985), the Appellate Court found error in the trial court's determination that a life tenant was not an owner under § 8-8(a)(1), and held that "[t]he term owner is one of general application and includes one having an interest other than the full legal and beneficial title." (Internal quotation marks omitted.) The court looked to the Connecticut Marketable Title Act, General Statutes §§ 47-33b through 47-33l, for "guidance in determining those interests in land which our legislature has deemed sufficient to warrant its protection," and reasoned that because the Act protects, "a purchaser of any estate or interest [in . . . land]," a life estate should also be protected by § 8-8. Id., 553-54. Accordingly, the court held that § 8-8(a)(1) encompasses one who holds a life estate.
On appeal, the Supreme Court upheld the ruling of the Appellate Court, holding that, "[t]he word owner has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used." (Internal quotation marks omitted.) Smith v. Planning Zoning Board, 203 Conn. 317, 322, 524 A.2d 1128 (1987). In determining that the plaintiff's life estate constituted ownership for purposes of § 8-8(a)(1), the court reasoned that, because the plaintiff, as a life tenant, may "use the land in the same manner as the holder in fee," she was the owner "[i]n every beneficial sense . . ." Id., 323. Of significance to the court were the plaintiff's rights to undisturbed possession, income and profits and conveyance. Furthermore, the right to possess, the right to use, the right to exclude and the right to transfer "constitute the essence of ownership of property." Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 151, 763 A.2d 1011 (2001). In addition, "the property of [a revocable inter vivos] trust is ordinarily treated as though it were owned by the settlor." 1 Restatement (Third), Trusts, § 25.2, p. 377 (2001). In the present case, Korsant is both the settlor and sole beneficiary of a revocable inter vivos trust. As such, his rights in the land include all of those interests that constitute the essence of ownership, and he is, therefore, the owner in every beneficial sense.
Furthermore, "[i]n seeking to determine [the] meaning [of statutory language], we look to . . . [its] relationship to existing legislation . . ." Avalonbay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537 (2005). As discussed below, another section of the zoning statute, General Statutes § 8-7c, requires the disclosure of the equitable owners or beneficiaries of real property held in trust when an application regarding the trust property is made by the trustee. "[T]he essential purpose of [§ 8-7c] is to disclose conflict[s] of interests among the people who serve as members of the boards . . . and to indicate who the real party in interest in the property is." Sklar v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex at Middletown, Docket No. 49357 (March 4, 1988, O'Connell, J.) ( 3 C.S.C.R. 347, 348) The legislature, therefore, contemplated that trust beneficiaries may have a significant interest in, and control over, the subject property. This bolsters the holding that trust beneficiaries may be owners within the meaning of § 8-8(1). Accordingly, this court finds that Korsant has pleaded and proved that he is statutorily aggrieved.
Section 8-7c provides that: "Any person who makes an application to a planning commission, zoning commission or zoning board of appeals pertaining to real property, the record title to which is held by a trustee of an undisclosed trust, shall file with said application a sworn statement disclosing the name of the equitable owner of such real property or the beneficiary of the trust."
While Catherine Korsant is listed as a plaintiff in the appeal, the plaintiffs have not argued or attempted to prove that she is aggrieved and, therefore, she lacks standing.
Finally, the Association claims that it is statutorily aggrieved under the doctrine of representational standing. The Connecticut Supreme Court approved the application of the doctrine of representational standing to zoning appeals in Timber Trails Corp. v. Planning and Zoning Commission, 222 Conn. 380, 393, 610 A.2d 620 (1992) and held that "[a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) At the trial, Anthony Daddino testified that he is the president of the Association, that Graf and Korsant are members of the Association and that one of the purposes of the Association is to ensure that all development in Field Point Park is done in an orderly manner and in accordance with all zoning regulations. The plaintiffs also submitted into evidence a certified copy of the Association's articles of incorporation, which state that one of the purposes of the Association is to provide for the protection and general welfare of Field Point Park residents. (Plaintiffs' Exh. 6.) Graf and Korsant have standing to sue in their own right, the Association's opposition to Pascarella's application is germane to the Association's purpose and the court can provide the requested relief of voiding the commission's approval without the participation of individual Association members. Accordingly, the Association has representational standing and, therefore, has pleaded and proved aggrievement.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides that, "[t]he appeal shall be commenced by service of process in accordance with subsection (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f)(1) provides that, "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board and by leaving a true and attested copy with the clerk of the municipality."
The marshal's return avers that, on July 2, 2003, service was made on the Greenwich town clerk, on the chairperson of the commission and on the secretary of the commission. The record contains a signed and sworn affidavit by the legal clerk of Southern Connecticut Newspapers, Inc., averring that the decision of the board was published in The Advocate newspaper on June 17, 2003. (ROR, Exh. 58.) This appeal was, therefore, commenced timely by service of process on the proper parties.
IV. SCOPE OF REVIEW
"[T]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002).
V. DISCUSSION
The plaintiff's appeal from the approval of Pascarella's application on the grounds that (1) the commission did not require Pascarella to submit a sworn statement disclosing the name of the equitable owner of the subject property, or the beneficiary of the trust, as required by General Statutes § 8-7c; (2) the commission permitted Pascarella to submit new plans as an amendment to the application, rather than requiring the submission of a new application, even though submission of the new plans was required in order to bring the application into compliance with the Greenwich Building Zone Regulations; (3) the commission misconstrued the applicable regulations and reversed previous decisions of the commission by permitting that portion of the property located within the right-of-way of the private street, Field Point Circle, to be used to satisfy the minimum lot size requirements of the RA-2 zone; (4) at least one member of the commission abrogated his legal duty to independently determine whether the application met the requirements of all applicable sections of the regulations by declaring that he considered himself to be legally bound by the decision of the zoning enforcement officer on the question of whether land within the right-of-way of Field Point Circle could be included in lot area for purposes of satisfying the minimum lot size requirements of the RA-2 zone; (5) the development of the subject property is reasonably likely to unreasonably pollute the public trust in the waters of Long Island Sound and to destroy a large number of mature trees; and (6) the application did not meet the standards for coastal site plan approval as set forth in the Greenwich zoning regulations, §§ 6-111 and 6-15.
The plaintiffs' original brief, filed on March 1, 2004, discussed only grounds three and four, regarding minimum lot size. The plaintiffs' corrected brief, filed on April 22, 2004, only discussed ground one, regarding disclosure of the trust beneficiary pursuant to § 8-7c. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided," Cybulski v. Planning and Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Furthermore, the plaintiffs conceded at trial that they had abandoned all but ground one in this appeal. Accordingly, the rest of the plaintiffs' grounds are deemed abandoned and will not be addressed by the court.
The plaintiffs allege that Pascarella failed to file a sworn statement disclosing the name of the beneficial owner of the subject property, as required by § 8-7c. They argue that this failure renders the commission's decision void as a matter of law and deprives the court of subject matter jurisdiction. The defendants do not dispute that a disclosure was not filed. Instead, they argue that the statute is merely directory and that because Pascarella filed the application as "Henry W. Pascarella, Trustee," and because the couple who will occupy the land were present and named during testimony at two of the commission hearings, the trust was not "undisclosed" within the meaning of § 8-7c.
Although the Connecticut appellate courts have not decided whether the disclosure called for in § 8-7c is mandatory or directory, two Superior Court cases have addressed the issue. In Sklar v. Zoning Board of Appeals, supra, 3 C.S.C.R. 347, the plaintiff applied to the zoning board of appeals for a variance, listing as property owner, "Tina L. Sklar," without revealing that she held the land as a trustee. The court reviewed the legislative history and determined that "the legislature intended to make full disclosure of trust beneficiaries a condition precedent to the hearing and determination of applications." Id. The court held that the disclosure provision is "the essence of the thing to be accomplished," and, therefore, mandatory, and that the applicant's failure to make the disclosure rendered the board's decision void as a matter of law. Id. Because the board's decision was void, the court ruled that it lacked subject matter jurisdiction, and granted the defendant's motion to dismiss.
In Howard v. Norwich, Superior Court, judicial district of New London at Norwich, Docket No. CV 92 0101425 (May 12, 1994, Silbert, J.) ( 11 Conn. L. Rptr. 479), the defendants proposed an amendment to the Norwich zoning ordinance, proceeding as "Joseph Goldberg, et al Trustees," without filing a sworn disclosure of the names of the trust beneficiaries. The court discussed whether the disclosure requirement was mandatory or directory, and found that, "[t]he statute appears, based on the legislative history . . . designed to secure order, system and dispatch in the proceedings," and that, "the disclosure requirement . . . is not the essence of the thing to be accomplished, but rather a vehicle for helping to assure a proceeding free of conflicts of interest." Howard v. Norwalk, supra, Superior Court, Docket No. CV 92 0101425. Accordingly, the court held that § 8-7c is directory, that the defendants' failure to comply with it did not void the amendment to the zoning ordinance and, therefore, that the court was not deprived of jurisdiction.
While § 8-7c states that the applicant "shall file" . . . a sworn disclosure, "the use of the word shall, though significant, does not invariably create a mandatory duty . . ." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 240, 794 A.2d 1016 (2002). "In determining whether a statute is mandatory or merely directory, the . . . test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to [a] matter of substance or to [a] matter of convenience." Donahue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). "If it is a matter of substance, the statutory provision is mandatory . . . If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where . . . the provision is stated in affirmative terms unaccompanied by negative terms and without any provisions that would invalidate action upon failure to comply." (Citations omitted; internal quotation marks omitted.) Brown v. Smarrelli, 29 Conn.App. 660, 664, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993).
The issue presented in this appeal is whether the legislature intended to make compliance with § 8-7c mandatory, and thus a prerequisite for the Superior Court's subject matter jurisdiction over this appeal. In Lauer v. Zoning Commission, 220 Conn. 455, 600 A.2d 310 (1991), the court considered the same question with regard to General Statutes § 8-3h. The court noted that, "[such a] determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction." (Internal quotation marks omitted.) Id., 460. The court reasoned that, "[t]he notice requirement of [§]8-3h was designed to give a town the opportunity to express its views about zoning actions contemplated by a neighboring town. It was not designed to give constructive notice to the general public." Id., 462-63. The court concluded that § 8-3h was akin to a personal notice statute, and noted that "[l]ack of personal notice may be waived by the party entitled to it." Id., 462. Accordingly, the court held that compliance with § 8-3h was not a prerequisite for subject matter jurisdiction.
General Statutes § 8-3h, which was subsequently repealed by P.A. 03-177 on October 1, 2003, stated that: "The zoning commission of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning [certain types of projects]."
Section 8-7c relates to a matter of procedural convenience by providing the commission with additional information to consider in its review of an application, and contains no language to suggest that the commission's decision should be invalidated where an applicant fails to comply. The disclosure requirement contained in § 8-7c is, therefore, merely directory. Furthermore, the purpose of the statute is to "assure that the identities of beneficial owners of the property are known to the commission . . . in order to avoid hidden conflicts of interests with commission members." (Emphasis added.) Howard v. Norwich, supra, Superior Court, Docket No. CV 92 0101425; see also Testimony of Representative Miller, 14 H.R. Proc. Pt. 8, 1971 Sess. Pp. 3666-67. The notice contemplated by § 8-7c, therefore, is personal to the commission and may be waived. Accordingly, compliance is not a prerequisite to the court's subject matter jurisdiction, and the defendants' failure to file the disclosure is not a jurisdictional defect.
VI. CONCLUSION
For all of the foregoing reasons, the plaintiffs' appeal is dismissed.
BY THE COURT
WILSON, J.