Opinion
No. CV07-400868S
July 8, 2008
MEMORANDUM OF DECISION
The plaintiffs in the above entitled matter on August 3, 2007 filed this appeal from a decision of the Milford Planning and Zoning Board approving an application filed by Smith Craft Real Estate Corporation, a co-defendant in this appeal. With the pleadings closed and briefs on file the matter was assigned for hearing and argument on May 19, 2008. At that time counsel Smith Craft raised the question whether the plaintiffs had adequately alleged in their complaint the location of their properties in order to establish that they were statutorily aggrieved and accordingly had standing. Paragraphs 1, 2 and 3 setting out the location of the plaintiffs' property simply lists street addresses without reference to their proximity to the premises set out in the application.
In addition to the defendant's claim that the plaintiffs have failed to properly allege classical aggrievement. In paragraph 11 of the plaintiffs' appeal they simply allege that as a result of the decision they are aggrieved. No facts have been pled to support the claim that they are classically aggrieved.
The defendant also claims that the "verified pleading" submitted by the applicant Lily Flannigan at the hearing before the Board on July 3, 2007 was invalid as it did not comply with C.G.S. 22a-19 which requires a verified complaint in order for a party to intervene in administrative proceedings.
1.
Inasmuch as the issue of aggrievement brings into question the power of the court to hear the appeal and thus raises the question of jurisdiction the hearing on the appeal was suspended in order for the court to rule upon the defendant's motion to dismiss.
" [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiffs appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; emphasis added; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).
"Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 393, 941 A.2d 868 (2008). "[Statutory] [s]tanding concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." (Internal quotations marks omitted.) Id., 393-94.
General Statutes § 8-8(a)(1) provides" `[a]ggrieved person' means a person aggrieved by a decision of a board . . .' [A]ggrieved 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."
"The 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] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 394.
Our Supreme Court has emphasized that subject matter jurisdiction "may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
In Wucik v. Planning and Zoning Commission, Superior Court, judicial district of New London, Docket No. CV 05 5003359 (May 22, 2007, Purtill, J.) (43 Conn. L. Rptr. 713), the plaintiffs appealed from the approval of a special exception application and site plan. The issue was whether the plaintiffs sufficiently had pleaded aggrievement. The plaintiffs had alleged that they were "statutorily or classically aggrieved by the decisions of the [d]efendant [c]ommission . . ." 43 Conn. L. Rptr. 714. The court observed that to be able to prevail on the issue of aggrievement, a trial court must first be satisfied that a plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and second, the plaintiff must prove the truth of those factual claims. A mere statement that a plaintiff is aggrieved, without more, would not be sufficient. 43 Conn. L. Rptr. 714, citing Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003). The Wucik court emphasized that the plaintiffs' aggrievement allegation was "a mere [conclusory] statement devoid of any specific factual allegations," and concluded that the failure to allege aggrievement properly deprived the court of subject matter jurisdiction to hear the appeal. 43 Conn. L. Rptr. 715.
In Southwick at Milford Condominium Assn., Inc. v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4004817 (May 3, 2006, Stevens, J.), the court dismissed an appeal for failure to allege aggrievement adequately. The plaintiffs had appealed the planning and zoning board's approval of an amendment to a site plan and the granting of a special permit. With respect to aggrievement, the plaintiff alleged the street location of its property and that it was aggrieved by the board's decision. The complaint further alleged that the plaintiff was aggrieved by the board's action in characterizing the application to amend the special permit as "minor," thereby avoiding public notice and comment and denying the plaintiff the opportunity to challenge the applicant's standing or otherwise voicing its concerns. Id. The court emphasized that the plaintiff's allegation concerning its location failed to assist the court in determining "the plaintiff's ownership of any land or the proximity of any such land to the property that is the subject of this appeal." Id. The court concluded that, as a matter of law, the plaintiff had failed to allege sufficient facts to establish either statutory or classical aggrievement.
In Hewitt v. Planning Zoning Commission, Superior Court, judicial district of New London, Docket No. 555010 (August 29, 2000, Hurley, J.T.R.), the court determined that an allegation claiming that the "plaintiff is aggrieved by . . . a granting of the special permit for Sprint PCS application for a telecommunications tower," did not meet the factual threshold for properly alleging aggrievement. The commission had granted a special permit application to Sprint PCS to construct a wireless telecommunication facility. The court observed that "[s]uch [a] conclusory allegation, without factual basis, is insufficient to plead aggrievement and thus invoke the court's subject matter jurisdiction." Id. The court further emphasized that the plaintiff's complaint, with respect to aggrievement, "alleges no facts at all; rather it summarily claims only that the plaintiff is aggrieved." Id. On that basis, the court dismissed the appeal.
As previously set forth, the plaintiffs in this appeal allege their ownership interest of properties at various addresses on Prospect Street and further allege that they are aggrieved "[a]s a result of the decision of the defendant-Board . . ." (Appeal ¶ 11.) Although the plaintiffs allege such ownership interests, the allegations concerning the street locations of the plaintiffs' properties fail to incorporate factual allegations concerning the proximity of those locations to the subject property. In addition, the plaintiffs' allegation that they are aggrieved by the board's action, without a factual basis, is conclusory.
Smith Craft also claims that the plaintiff, Lily E. Flannigan, submitted a document purporting to be a "verified pleading," but that the document fails to meet the requirements of General Statutes § 22a-19, therefore, it is invalid. This plaintiff counters, however, that she properly intervened before the board and is aggrieved by virtue of General Statutes § 22a-19.
General Statutes § 22a-19(a) provides in part "any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Recognizing that the statute fails to define the term "verified pleading," our Supreme Court has observed that "pleading" is defined as "[a] formal document in which a party to a legal proceeding . . . sets forth or responds to allegations, claims, denials or defenses . . . and that "[v]erify is defined as [t]o confirm or substantiate by oath or affidavit; to swear to the truth of." (Citations omitted; emphasis in original; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 162-63, 788 A.2d 1158 (2002).
In the present appeal, Flannigan claims on the face of her petition that she has been "duly sworn, depost [sic] and say that I have read the foregoing Petition for Intervention, and that the allegations contained therein are tru [sic] to the best of my knowledge and belief . . ." (Return of Record [ROR], Exhibit ff.) The notary public states that "[t]he foregoing instrument was acknowledged before me this 3rd day of July 2007, by Lily Flannigan, as her free act and deed." (ROR, Exh. ff.)
The Connecticut Supreme Court has differentiated between an "acknowledgment" and a "verification" in the context of a mechanic's lien. "It is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed . . . On the other hand, a requirement that a document be sworn to contemplates the execution of an affidavit that the facts contained in it are true . . . An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents . . . A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath." (Citations omitted; emphasis added; internal quotation marks omitted.) J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990 (1989).
In Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 911 A.2d 300 (2006), the court applied the definition of a statutory "subscribed and sworn to" provision in determining the validity of a mechanic's lien. The court explained, in pertinent part, that one of the requirements was "that there be evidence in the lien, such as a jurat, confining the administration of the oath by a notary public or a commissioner of the Superior Court." Id., 679.
In the present case, the notary public merely states that "The foregoing instrument was acknowledged before me this 3rd day of July 2007, by Lily Flannigan, as her free act and deed." (ROR, Exh. ff.) The instrument does not contain a confirmation by the notary public that an oath was administered. The instrument in question was merely "acknowledged," not "verified," accordingly it is not valid. As a result, the plaintiffs failed to intervene properly in the administrative proceeding below and are unable to proceed under the auspices of General Statutes § 22a-19 before this court. See Hyllen-Davey v. Plan and Zoning Commission, 57 Conn.App. 589, 596-98, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000) (failure to intervene in agency proceedings below prohibits initiation of independent appeal to Superior Court).
The court finds that the plaintiffs have failed to plead facts supporting either statutory or classical aggrievement and, further, they are precluded from appealing to the Superior Court based upon the defective petition submitted to the commission. Accordingly, the court lacks subject matter jurisdiction over this appeal and the court dismisses the plaintiffs' appeal.