Summary
Standing generally exists “when a complainant makes a colorable claim of direct injury 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.”
Summary of this case from Pac. Ins. Co., Ltd. v. Champion Steel, LLCOpinion
No. 19262.
07-14-2015
HANDSOME, INC., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE.
Edward P. McCreery III, with whom were Assaf Z. Ben–Atar and, on the brief, John H. Van Lenten, Bridgeport, for the appellant (defendant). Ian Angus Cole, Derby, for the appellees (plaintiffs).
Edward P. McCreery III, with whom were Assaf Z. Ben–Atar and, on the brief, John H. Van Lenten, Bridgeport, for the appellant (defendant).
Ian Angus Cole, Derby, for the appellees (plaintiffs).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.
Opinion
ZARELLA, J.The defendant, the Planning and Zoning Commission of the Town of Monroe (commission), appeals from the judgment of the trial court, which sustained the appeal of the plaintiffs, Handsome, Inc. Handsome), and its principal officers, Todd Cascella and Mona Cascella, from the commission's decision to impose conditions on the granting of an extension of a special exception permit that were not included in the original permit. The commission claims that the trial court incorrectly concluded that (1) the plaintiffs were aggrieved by the commission's decision and thus had standing to bring the appeal, (2) the court had subject matter jurisdiction over the plaintiffs' related claim under the Freedom of Information Act, General Statutes § 1–200 et seq., challenging the propriety of an executive session that the commission held at a hearing on the permit extension application, even though the same claim was pending before the Freedom of Information Commission (FOIC), (3) the commission could not impose additional conditions when it granted the extension, and (4) the additional permit conditions were new. The plaintiffs respond that (1) they were aggrieved by the commission's decision, (2) the trial court did not assert subject matter jurisdiction over the freedom of information claim, and (3) the trial court correctly determined that the disputed conditions were new and that the commission could not impose the conditions when it granted the extension. We conclude that the plaintiffs were not aggrieved by the commission's decision and, therefore, did not have standing to bring the appeal. Accordingly, we vacate the judgment of the trial court.
Todd Cascella is the president and Mona Cascella is the secretary of Handsome, and we refer to them as the Cascellas. We refer to Handsome and the Cascellas collectively as the plaintiffs.
I
FACTS
The trial court made the following factual findings in its memorandum of decision. In March, 2003, Handsome filed with the commission an application for a special exception permit to construct a 20,000 square foot industrial building on a 9.9 acre property in the town of Monroe (town). The property is located in a design industrial zone at 125 Garder Road. Properties in a design industrial zone are subject to the special exception permit process, which requires compliance with certain applicable regulations before a special exception permit may be granted.
On March 20, 2003, the commission approved the permit application, subject to thirty-six conditions and an expiration date of May 15, 2008. On April 24, 2008, the commission denied Handsome's application for a permit extension because it had not submitted the required progress reports and had not begun construction of the building.
The plaintiffs appealed to the trial court, and, on September 9, 2010, the court sustained the appeal. The court determined that Handsome's application for a permit extension sought the same relief as the original permit application and that there had been no intervening changed conditions affecting the property. The court thus concluded that the commission “had no option but to approve” the application. The commission did not appeal from the trial court's judgment.
Handsome subsequently asked the commission in letters dated October 1 and November 1, 2010, to issue the permit extension in accordance with the trial court's judgment, but the matter did not appear on the commission's regular meeting agenda until May 5, 2011. At the start of the meeting, the commission immediately went into executive session to discuss what it described as certain general legal matters pertaining to zoning enforcement. The commission invited several land use and zoning officials, as well as the town's first selectman, to participate in the executive session. When the commission reconvened following the executive session, it granted Handsome's application and extended the permit to March, 2013, five years from the expiration date of the original permit but approximately two years from the date of the meeting.
The commission approved two motions in connection with this action. In the first motion, the commission noted that an original condition of approval had been the posting of a bond, that a bond must now be set, and that this would be “a prerequisite [to] commencement of any [on-site] work in accordance with the regulations of prior approval.” The commission added that “[a]ll prior conditions of approval that were originally granted with [the] application including all landscaping plans, judiciary plans, no [top soil] removal from the site and anything else from the original application should remain in effect.”
The commission also approved a second motion stating that “[n]o work should be conducted at 125 Garder Road until the [b]ond as recommended by the [t]own [e]ngineer is posted. A list of items included: that the requirements that were originally listed remain; that the [c]ommission be provided with the information on who the current engineer is for the property owner; that the required reports from the original approval be provided to the [c]ommission (work that has been done, work that will be going on and work to close out the program); that the engineer will provide a status of the condition of the site (as built of current conditions); and, the final concept plan of what will bring the site to what was originally intended per the approved permit (calculations remaining of how much processed [on-site] removal or being brought in to complete the site). Also included are all of the standing conditions from the original [permit].”
In addition, the permit extension was made subject to five other “requirements” and several “clarification[s]” relating to the original permit approval in March, 2003. On May 13, 2011, the commission sent a letter to Handsome stating that its application to extend the permit had been granted.
The plaintiffs timely appealed from the commission's decision to the trial court. The record was supplemented by the deposition testimony of eleven individuals, including several town officials and commission members who had participated in the executive session and had voted to extend the permit. On appeal, the plaintiffs challenged the imposition of conditions they alleged had not been part of the original permit. They also challenged the commission's decision to set a new expiration date of May 20, 2013, five years from the expiration date of the original permit, arguing that the permit should have been extended to May, 2016, five years from the date the application to extend the permit was granted. They finally challenged the propriety of the executive session held immediately prior to the May 5, 2011 vote to grant the permit extension.
At the same time, the plaintiffs filed a complaint with the FOIC, in which they alleged that the May 5, 2011 executive session violated the Freedom of Information Act. The FOIC agreed, but the commission's appeal from the FOIC's ruling was sustained. Both the plaintiffs and the commission appealed, and this court concluded that the commission had violated the act by convening the executive session. See Planning & Zoning Commission v. Freedom of Information Commission, 316 Conn. 1, 4, 8, 110 A.3d 419 (2015).
The commission disagreed with the plaintiffs' claims and, in addition, contended that the plaintiffs did not have standing to appeal. The commission argued that an unrecorded judgment of strict foreclosure against Handsome before the permit was extended deprived Handsome of title to the property and that the Cascellas' status as corporate officers who derived income from Handsome was insufficient to establish that the plaintiffs were aggrieved.
The trial court sustained the plaintiffs' appeal. The court first determined that both Handsome and the Cascellas were aggrieved. It then determined that the executive session held on May 5, 2011, was not authorized by the Freedom of Information Act and that the commission was not permitted, pursuant to the trial court's order, to impose conditions in connection with the permit extension that had not been part of the original permit. It finally determined that the commission's decision to approve the permit extension retroactive to March, 2008, when the original permit expired, was contrary to law.
The court subsequently issued the following order: “The [commission] is directed to approve the special exception permit ... conditioned only upon the conditions as voted by the commission in 2003, and recited in the final decision of March 20, 2003.
“Pursuant to [c]ondition [17] of the 2003 approval, the commission in a subsequent and separate vote, may require the posting of a bond ... for the purpose of securing completion of the site work or restoration or stabilizing of the disturbed site dependent on circumstances due to failure to complete, proceed, abandonment, inactivity or other similar lack of improvement, should it be warranted.
“Any discussion or receipt of information concerning the posting of a bond by the commission shall take place during a public session of the commission, so that any vote will not be tainted by deliberations conducted during an improper executive session.
“The five year extension shall begin to run from the date the commission extends the special exception permit.” (Internal quotation marks omitted.)
On July 24, 2013, the Appellate Court granted the commission's petition for certification to appeal from the trial court's judgment, and the appeal subsequently was transferred to this court. Additional facts will be provided as necessary for review of the commission's claims.
II
AGGRIEVEMENT
The commission begins by challenging the trial court's conclusion that the plaintiffs were aggrieved and thus had standing to appeal. The commission claims that the plaintiffs were not aggrieved because Handsome was not the legal owner of the property on May 5, 2011, the date the extension was approved, and the Cascellas, despite their status as corporate officers who derived income from the corporate entity, were not, from a legal standpoint, specially and injuriously affected by the commission's action. The plaintiffs respond that the trial court correctly concluded that they were aggrieved because Handsome did not lose record title to the property pursuant to an action of strict foreclosure and the Cascellas were personally and injuriously affected by the commission's action. We agree with the commission.
The following additional facts are relevant to our resolution of this claim. Handsome acquired title to 125 Garder Road by way of a quitclaim deed recorded on November 13, 2001, in the town land records. The instrument was signed by Todd Cascella, the grantor.
On December 20, 2005, MD Drilling & Blasting, Inc. (MD Drilling), filed a mechanic's lien on the property that also was recorded in the town land records. On February 26, 2006, it filed a notice of lis pendens in the land records in connection with the mechanic's lien. In March, 2006, MD Drilling brought an action against Cascella & Son Construction, Inc. (Cascella & Son), and Handsome, seeking to foreclose on the mechanic's lien. On December 29, 2009, the trial court rendered a judgment of strict foreclosure in favor of MD Drilling and set March 2, 2010, as the law day. The debt amount was determined to be $27,271.55. Thereafter, the court granted Cascella & Son's motion for an extension of time to postpone commencement of the law days and set a new law day for June 29, 2010.
After the initial law day had passed but before expiration of the new law day, MD Drilling executed a written agreement on April 13, 2010, with Todd Cascella, acting on behalf of Cascella & Son and Handsome. The agreement provided that MD Drilling would allow Cascella & Son and Handsome to retain possession of the property if Cascella & Son paid “the entire amount of the [debt owed] in monthly installments ... commencing on March 16, 2010,” until the judgment was paid in full, but that Cascella & Son's “failure to issue any payment, when due, [would] be considered a default of [the] [a]greement” and entitle MD Drilling “to possession of the property and ... to take any action it deems necessary to collect the remaining balance of the [debt]....” In return, MD Drilling agreed that it would not file a judgment of possession or an order of ejectment prior to June 30, 2010, and would request a law day extension until July 29, 2010, if Cascella & Son made timely payments through June 16, 2010. MD Drilling also agreed to continue requesting such extensions for as long as Cascella & Son was not in default of the agreement. Finally, the agreement provided that the judgment of strict foreclosure would be “ and void when the ... debt [was] satisfied.”
Todd Cascella subsequently testified at trial that the required monthly payments were being made and that Cascella & Son was not in default of the agreement. The law day was never again postponed, however, and it passed without redemption of the property by Handsome.033
In its memorandum of decision, the trial court first observed that “[t]he owner of the property which forms the subject matter of an action before a land use agency is aggrieved by an adverse decision of the agency.” The court then concluded that Handsome was aggrieved and had standing to appeal from the commission's decision because legal title to real property is not required to satisfy the test for aggrievement. Rather, the court reasoned that title for this purpose “is controlled by [the] deeds recorded on the land records.” Thus, because the judgment of strict foreclosure against Handsome never had been recorded in the town land records, Handsome remained the record owner of 125 Garder Road and had standing to appeal. The court added that “[t]he fact that an agreement ... provides for a mechanism for satisfying the judgment of strict foreclosure, solidifies and enhances Handsome's interest in the property” and that “[t]he judgment of strict foreclosure [rendered] in favor of MD Drilling ... [was] not sufficient to deny aggrieved status to Handsome....” In support of its conclusion that Handsome's status as the record owner of the property, rather than the holder of legal title, was sufficient to establish aggrievement, the court cited several cases in which legal title was deemed unnecessary to satisfy the test for aggrievement. The court next considered the status of the Cascellas and concluded that they also had standing to appeal on grounds of statutory aggrievement because their personal and legal interests in the property had been specially and injuriously affected by the commission's action.
We begin with the applicable legal principles and the standard of review. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue.... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests....
“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.... [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. ...“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....
General Statutes § 8–8(a) provides in relevant part: “(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board....”
Although § 8–8(a) was amended in 2012; see Public Acts 2012, No. 12–146, § 1; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.
“[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them.” (Citations omitted; footnote added; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 393–95, 941 A.2d 868 (2008) (Cambodian Buddhist Society ).
“Mindful that it is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity ... [a plaintiff is] required to plead and prove some injury in accordance with our rule on aggrievement.... Accordingly, [i]t [is] the function of the trial court to determine ... first, whether the [plaintiff's] allegations if they should be proved would constitute aggrievement as a matter of law, and second, if as a matter of law they would constitute aggrievement, then whether [the plaintiff] proved the truth of [the] allegations.... Although the question of whether a party is aggrieved presents a question of fact in cases involving disputed facts ... the question of whether the pleadings set forth sufficient facts, if presumed true, to establish a party's aggrievement presents a question of law over which we exercise plenary review.” (Citations omitted; internal quotation marks omitted.) Connecticut Independent Utility Workers, Local 12924 v. Dept. of Public Utility Control, 312 Conn. 265, 272–73, 92 A.3d 247 (2014).
A
The commission claims that Handsome was not aggrieved because it lost title to the property due to the passing of the law days in the strict foreclosure action and the absence of a recorded foreclosure certificate does not void the passing of title through the judicial foreclosure decree. We agree.
It is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 671, 899 A.2d 26 (2006) (owner of property at issue in zoning appeal always is aggrieved); see also Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968) (“[a]s the owner of the tract in issue, the plaintiff was certainly aggrieved by the action of the common council”). “[I]n order to retain standing as an aggrieved person, [however] a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal.... It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the commission.” (Citations omitted.) Primerica v. Planning &
Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989). Accordingly, because 125 Garder Road was subject to a strict foreclosure action prior to the granting of the permit extension, we must examine the law of strict foreclosure to determine the effect of the foreclosure action on Handsome's ownership interest at the time it sought the permit extension and during its subsequent appeal from the commission's decision.
This court has stated that, “[i]n all essential respects the attributes of foreclosure of mortgages apply to [mechanic's] liens.” City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935). Thus, to the extent the foreclosure of mortgages and mechanic's liens involve similar procedural steps, the law established in mortgage foreclosure actions also applies to mechanic's liens.
Connecticut courts have long recognized that, when “a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [lienor].... The [property owner] has no remaining title or interest....” (Citations omitted.) Id., at 25, 179 A. 339 ; see also First Bank v. Simpson, 199 Conn. 368, 372, 507 A.2d 997 (1986) (“[t]he judgment of strict foreclosure clearly vested absolute title in the foreclosing [party] and extinguished any interest of the [owner] in the foreclosed property”); JP Morgan Chase Bank v. Gianopoulos, 131 Conn.App. 15, 21–22, 30 A.3d 697 (under law of strict foreclosure, “[t]he effect of the passing of the law day is that ... title to the property becomes unconditional in the encumbrancer”), cert. denied, 302 Conn. 947, 30 A.3d 2 (2011) ; Barclays Bank of New York v. Ivler, 20 Conn.App. 163, 166, 565 A.2d 252 (same), cert. denied, 213 Conn. 809, 568 A.2d 792 (1989).
This principle also has been recognized in Connecticut's foreclosure statutes. General Statutes § 49–16, which pertains to foreclosure certificates, provides in relevant part that, “[w]hen ... the time ... for redemption has passed, and the title to the mortgaged premises has become absolute in the [lienor ] ... he shall ... make and sign a certificate ... [that] shall be recorded in the records of the town....” (Emphasis added.) In short, “title ... become[s] absolute in the [lienor] ... the day after all of the law days have passed without anyone redeeming.” 1 D. Caron & G. Milne, Connecticut Foreclosures: An Attorney's Manual of Practice and Procedure (5th Ed.2011) c. 6–3, pp. 336–37.
In the present case, the trial court rendered a judgment of strict foreclosure in favor of MD Drilling on December 29, 2009, and set March 2, 2010, as the law day. The court subsequently granted Cascella & Son's motion for an extension of time to postpone commencement of the law days and set a new law day for June 29, 2010, which appears to have passed without redemption. There is no evidence in the record that Cascella & Son, Handsome or MD Drilling filed a motion to open the judgment within the appeal period in order to modify its terms. See General Statutes § 49–15. Accordingly, lacking evidence to the contrary, we are compelled to conclude that Handsome lost title to the property on June 30, 2010, more than ten months before the commission granted the permit extension.
General Statutes § 49–15 provides in relevant part: “(a)(1) Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52–212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer except as provided in subdivision (2) of this subsection.
“(2) Any judgment foreclosing the title to real estate by strict foreclosure may be opened after title has become absolute in any encumbrancer upon agreement of each party to the foreclosure action who filed an appearance in the action and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, provided (A) such judgment may not be opened more than four months after the date such judgment was entered or more than thirty days after title became absolute in any encumbrancer, whichever is later, and (B) the rights and interests of each party, regardless of whether the party filed an appearance in the action, and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, are restored to the status that existed on the date the judgment was entered....”
In Southbury v. American Builders, Inc., 162 Conn. 633, 295 A.2d 566 (1972), in which the defendants conceded that they had no interest in the property in question because of a foreclosure subsequent to the commencement of the appeal, we recognized that, “[a]lthough a party may have had an appealable interest in a controversy, if, after judgment, his interest is either conveyed or transferred absolutely or terminated by operation of law, his right to appeal is lost, since he no longer has any interest in the litigation and is not injured by the result of the action.” Id., at 634, 295 A.2d 566. In the present case, apparently unbeknownst to the commission, Handsome lost title to the property before the permit extension proceedings because it had failed to pay its debt to the lienor, to obtain an extension of the law day, or to file a motion to open and modify the judgment in order to avoid this consequence. Accordingly, we conclude that Handsome had no standing to bring the appeal because, having lost title to the property, it was not aggrieved by the commission's decision to impose conditions in connection with the permit extension.
We reject the plaintiffs' argument that Southbury is distinguishable from the present case because it involved an enforcement action that challenged the standing of the defendant rather than an administrative appeal that challenged the standing of the plaintiff. In both cases, the owner lost title to the subject property as the result of a foreclosure, and, therefore, the general principle articulated in Southbury that the right to appeal is lost when an interest is terminated by operation of law also is applicable in the present case.
The plaintiffs argue that this court should not “import the intricacies of foreclosure law into the zoning law analysis of whether Handsome is ... aggrieved” but, rather, should rely on decisions such as Paupack Development Corp. v. Conservation Commission, 229 Conn. 247, 640 A.2d 70 (1994), and Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 153 A.2d 441 (1959), in which Connecticut courts have looked to the owner of record for purposes of determining aggrievement. The plaintiffs, however, cite no authority in support of their claim that foreclosure law does not apply, and, therefore, Paupack Development Corp. and Purtill are inapposite because neither case involved a judgment of strict foreclosure or addressed the effect of such a judgment on the ability of a plaintiff, who has lost title to the property but remains the owner of record, to maintain an appeal.
Furthermore, there is no legal authority, and the plaintiffs have cited none, for the proposition that title acquired by way of a strict foreclosure proceeding is not absolute until a certificate of foreclosure is recorded in the land records. Rather, the opposite is the case. In Ghent v. Meadowhaven Condominium, Inc., 77 Conn.App. 276, 823 A.2d 355 (2003), the Appellate Court stated that “[t]he certificate of judgment of strict foreclosure [is] not the [muniment] of title.” (Internal quotation marks omitted.) Id., at 288, 823 A.2d 355, quoting Connecticut Bar Association, Connecticut Standards of Title (1999) standard 19.7(c) (Connecticut Standards of Title); see also Connecticut Standards of Title, supra, standard 19.2 (“A statutory certificate of foreclosure is not a muniment of title. It merely serves as public notice that a particular mortgage or lien has been foreclosed. It acts as a pointer for title searchers directing them to the particular court action which foreclosed the mortgage or lien. Thus, any inaccuracies or omissions in such recorded certificate, regardless of their nature, will not affect the marketability of title.”). It is “the foreclosure action [that] changes the [encumbrance] from a conditional conveyance to an absolute one and the certificate only evidences the judicial process by which this has occurred.” 2 D. Caron & G. Milne, supra, c. 21–3, p. 89; see also Connecticut Standards of Title, supra, standard 19.2, comment (1) (“the foreclosure decree is a muniment of title and not the certificate of foreclosure”). This conclusion is further substantiated by § 49–16, which, as previously noted, provides that only after the time for redemption has passed and “the title to the mortgaged premises has become absolute in the [lienor ]” shall the lienor “make and sign a certificate ... [that] shall be recorded in the records of the town....” (Emphasis added.) We also note that, in the present case, the notice of lis pendens that MD Drilling filed in the land records in connection with the mechanic's lien indicated that title had been challenged and might no longer be held by Handsome.
The plaintiffs finally argue that Handsome is classically aggrieved because it has a specific personal and legal interest in seeking a judicial determination regarding the validity of the new conditions imposed in connection with the permit extension, which serve to prevent Handsome from completing the project. The conditions to which the plaintiffs refer are the new expiration date, approximately two years from the date the permit extension was granted, and the posting of what they describe as an “extremely large bond” in the amount of $100,000. (Internal quotation marks omitted.) We need not address this claim, however, in light of our previous conclusion that Handsome had no ownership interest in the property.
We disagree with the dissenting justice's claim that we improperly decline to address “the import of Handsome's agreement with MD Drilling” because Handsome relied on the agreement in support of its claim of aggrievement throughout the proceedings and the trial court relied on the agreement in concluding that Handsome's interest in the property was sufficient to establish aggrievement.
An objective examination of the record demonstrates that the plaintiffs did not rely on the agreement as evidence of a possessory interest in the property in support of their claim of aggrievement throughout the proceedings. In their complaint, the plaintiffs alleged aggrievement on the basis of their ownership interest in the property. The first and only time the plaintiffs clearly argued aggrievement on the basis of a possessory interest in the property was in their objection to the commission's motion to dismiss. In response to the commission's direct attack on the plaintiffs' allegation that Handsome was aggrieved as the owner of the property, the plaintiffs argued that an ownership interest was not required to prove aggrievement and that Handsome retained a possessory interest under its agreement with MD Drilling that was sufficient to establish aggrievement. The plaintiffs' counsel, however, did not make that argument at trial. Rather, the plaintiffs' attorney elicited testimony from Todd Cascella that Handsome was the owner of the property, that Handsome's ownership interest was established by a recorded deed, which was entered into evidence as the plaintiffs' first exhibit, and that Handsome remained the owner of the property as of the date of Todd Cascella's testimony. Similarly, in his one and only argument to the court on the issue of aggrievement at trial, the plaintiffs' counsel contended: “[W]hat's important is the record owner, and the evidence today is [that Handsome] is the record owner. Lots of times there are liens or there [is] a lis pendens filed on the land records, [and] anybody going to [the] land records to determine who the record owner is in this particular case would conclude that [Handsome] is still ... the record owner.” Thus, although there was testimony and discussion between the court and the parties' attorneys regarding the written agreement in the context of the foreclosure action, including the fact that Handsome continued to do business on the property and that the judgment of strict foreclosure, together with the agreement, might create in Handsome a possible license or security interest in the property, the plaintiffs' counsel did not argue at trial that Handsome was aggrieved on the basis of a possessory interest in the property. The plaintiffs also did not make that argument in their posttrial brief, and they never sought to amend their complaint to allege a possessory interest as an alternative ground for aggrievement. As previously discussed, a plaintiff is required to specifically plead and prove aggrievement, and it is the function of a reviewing court to determine “whether the pleadings set forth sufficient facts, if presumed true, to establish a party's aggrievement....” (Internal quotation marks omitted.) Connecticut Independent Utility Workers, Local 12924 v. Dept. of Public Utility Control, supra, 312 Conn. at 273, 92 A.3d 247. Accordingly, because the plaintiffs never claimed a possessory interest in the property in their original complaint, never amended their pleadings to add such a claim, and never argued at trial that they had a possessory interest in the property, the dissenting justice's assertion that the plaintiffs relied on a possessory or equitable interest in the property throughout the proceedings as the basis for their claim that Handsome was aggrieved is simply not true.
Additionally, the plaintiffs failed to properly make this argument in their appellate brief. On appeal, the plaintiffs argue that Handsome was aggrieved as the record owner of the property and that “the courts have looked to the owner of record for purposes of determining who is aggrieved.” In developing this argument, the plaintiffs attack the commission's reliance on Southbury for the principle that “an owner whose property is foreclosed lacks standing to prosecute a zoning appeal.” The plaintiffs argue that Southbury is distinguishable from the present case because, unlike in Southbury, (1) the present case is an administrative appeal, (2) the present case involves the standing of the plaintiffs rather than that of the defendant, (3) the certificate of foreclosure in the present case has never been recorded, (4) Handsome is still in possession of the premises, (5) Handsome retains an equitable interest in the premises as a result of the agreement with MD Drilling to void the foreclosure upon satisfaction of their payment arrangement, and (6) Handsome would benefit from a judgment in its favor. The plaintiffs' reference to the fact that Handsome is still in possession of, and retains an equitable interest in, the property, however, does not represent an independent claim that Handsome is aggrieved on the basis of a possessory or equitable interest in the property. It is a statement of fact used to distinguish Southbury from the present case. The reference is contained in a mere three lines of the plaintiffs' appellate brief and is unaccompanied by any supporting analysis or citation to relevant legal authority. It is well established that “[w]e are not obligated to consider issues that are not adequately briefed.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008). Issues are deemed inadequately briefed “when they are merely mentioned and not briefed beyond a bare assertion ... [and] when they ... consist of conclusory assertions ... with no mention of relevant authority and minimal or no citations from the record....” (Citations omitted; internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n. 40, 35 A.3d 188 (2012). Accordingly, even if the plaintiffs intended to raise such a claim, they did not adequately brief it.
We also disagree with the dissenting justice insofar as he asserts that the trial court relied on the agreement with MD Drilling in concluding that Handsome's interest in the property was sufficient to establish aggrievement. The trial court concluded that Handsome was aggrieved because it was the record owner of the property, and only then noted that the agreement with MD Drilling “solidifie [d ] and enhance [d ] Handsome's [ownership] interest in the property.” (Emphasis added.) The court thus found that Handsome had an ownership interest in the property apart from the agreement with MD Drilling and that the agreement merely reinforced this interest.
To the extent the court cited Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 669, 899 A.2d 26 (2006), Shapero v. Zoning Board, 192 Conn. 367, 376, 472 A.2d 345 (1984), Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955), Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767, 755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753 (2000), and Michel v. Planning & Zoning Commission, 28 Conn.App. 314, 324–25, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992), for the proposition that “[l]egal title to property is not required in order to satisfy the test for aggrievement,” it did so for the purpose of agreeing with the plaintiffs' argument that Handsome's status as the record owner of the property was sufficient to establish aggrievement, and not for the purpose of showing that Handsome had a possessory or equitable interest in the property. Only a few lines before the trial court cited the foregoing cases, it referred to the commission's argument that “the entry of a judgment of strict foreclosure, even if unrecorded, vests title in the foreclosing party, and that [Handsome] ha[d] no standing to prosecute this appeal” before concluding that “[t]his claim is not well taken.” The trial court explained that Handsome was the record owner of the property, that “[t]itle to real estate is controlled by [the] deeds recorded on the land records” and that “[l]egal title to property is not required in order for a party to satisfy the test for aggrievement.” It then cited the foregoing cases in support of its conclusion that legal title is not required. The trial court made no reference at any point in its decision to an argument by the plaintiffs that Handsome was aggrieved because of an independent possessory or equitable interest in the property. In sum, the trial court's reference to the agreement with MD Drilling and to the foregoing cases provides no support for the dissenting justice's view that the court determined that Handsome was aggrieved on the wholly independent ground that it had a possessory or equitable interest in the property. Accordingly, there is no basis in the trial court's decision for appellate review of such a claim.
B
The commission next contends that the Cascellas lacked standing to assert claims that are derivative of Handsome and, therefore, that the trial court improperly concluded that they were aggrieved. The plaintiffs respond that the Cascellas were aggrieved because they were not only officers of Handsome, but were personal guarantors of the mortgage on 125 Garder Road and had cosigned loans for equipment on the site, both of which were foreclosed. They also argue that they were beneficiaries of the judgment ordering the commission to approve the permit extension and were sued personally by the town and the town zoning enforcement officer for allegedly violating the new permit conditions during the present appeal. We agree with the commission.
As previously noted, the trial court concluded that the Cascellas were statutorily aggrieved because their personal and legal interests had been specially and injuriously affected by the commission's action. The court explained that, “[a]lthough the mere status of a corporate or limited liability company shareholder or officer would not, in and of itself, satisfy the test for classical aggrievement,” the Cascellas had “provided sufficient proof of aggrievement” because, “in addition to being officers of [Handsome], [they] derive[d] considerable income from [Handsome] and [were] involved in all management decisions.” In reaching this conclusion, the trial court relied on DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 370–71, 376–77, 588 A.2d 244 (agreement between property owner and property owner's son allowing son to use property for car dealership created sufficient interest in property to allow son to appeal from zoning decision affecting property), cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), and distinguished the present case from Cambodian Buddhist Society
of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 393, 941 A.2d 868 (plaintiff not statutorily aggrieved by planning and zoning commission's denial of application for special exception because he “did not own the property” that was subject of application and “did not own land abutting or within 100 feet of the property”).
We first note that, to the extent the trial court indicated that the Cascellas were statutorily aggrieved, no evidence was presented at trial that they satisfied a principal requirement of statutory aggrievement in Connecticut, namely, the ownership of land abutting or within 100 feet of any portion of the land involved in the decision of the board or commission. See footnote 4 of this opinion. Accordingly, we consider only whether the Cascellas were classically aggrieved.
We agree with the commission that the facts in the present case are similar to the facts in Cambodian Buddhist Society and that its reasoning applies here. In that case, we determined that the president of a religious society did not have standing to appeal from the planning and zoning commission's denial of the society's application for a special exception to build a Buddhist temple on its property because the alleged injury was “entirely derivative of the society's claim as the owner of the property. The interest in building a temple on the property is essentially a property interest. Although the [planning and zoning] commission's decision might have ramifications for the individual members of the society and the circumstances under which they practice their religion, the right to build the temple could not be asserted independently by an individual member. If the society chose not to appeal from the [planning and zoning] commission's denial of the society's application for a special exception, then any independent challenge ... would be subject to dismissal as moot.... It is clear, therefore, that, because any injuries that [the president] suffered as a result of the [planning and zoning] commission's decision are in reality derivative of injuries to [the society], the injuries are not direct but are indirect, and [he] has no standing to assert them.” (Footnote omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 396, 941 A.2d 868. The court thus concluded that the president of the society was neither classically nor statutorily aggrieved. Id., at 397–98, 941 A.2d 868 ; see also Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347–48, 780 A.2d 98 (2001) (“[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. Where, for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them.”).In the present case, the trial court recognized our decision in Cambodian Buddhist Society but distinguished the Cascellas' positions as officers of Handsome from the officer and members of the religious society on the ground that the Cascellas “derive considerable income from [Handsome] and are involved in all management decisions.” We do not agree with this distinction because the lack of a temple in which to worship occupied just as integral and important a place in the daily lives of the officer and members of the religious society as the Cascellas' income and management responsibilities occupied in their own daily lives. Indeed, we specifically referred to testimony in Cambodian Buddhist Society that “the society ... had no temple in the state of Connecticut at which its members could worship ... the society had purchased the property [at issue] because [it] possessed the appropriate qualities for a temple ... the society ... had been required to hold religious services in a rented space ... it [was] essential to Cambodian Buddhism that monks live in the temple and that the practitioners be able to visit the temple where the monks live ... [it was] important that the temple be located in a tranquil environment where the practitioners can enter into a meditative state ... the older generation of Cambodian Buddhists [was] dying without being able to introduce the youngest generation to the religion, and if much more time passe[d] before the society [was] able to build a temple, there might be no need for one.” Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 389–90, 941 A.2d 868.
Moreover, the trial court in the present case overlooked the dispositive legal factor in Cambodian Buddhist Society, which was that the interest in question was a property interest, and, therefore, “the right to build the temple could not be asserted independently by an individual [society officer or] member.” Id., at 396, 941 A.2d 868. In the present case, as well, the interest in question is a property interest that cannot be asserted by the Cascellas because they are not the owners of the property.
The plaintiffs argue that the court should be guided by Loew v. Falsey, 144 Conn. 67, 127 A.2d 67 (1956), in which we held that the plaintiff, the sole owner of stock in two corporations over which he exercised control, had standing to bring a mandamus action to compel the issuance of a building permit, even though the corporation was the owner of the property, because he “was the beneficial owner” or “equitable owner....” Id., at 74, 127 A.2d 67. We explained in Loew: “There is no reason why a permit for the proposed construction could not have been granted either to [the plaintiff] or to [the corporation]. In short, there is no jurisdictional defect by reason of the incorrect name of the [plaintiff rather than the corporation on the permit application]. Under the circumstances, the application as completed complied substantially with the code requirements. This is all that the law demands.... While the corporation may have held the legal title to the premises, [the plaintiff] owned and controlled the corporation. He was the beneficial owner. By analogy, an equitable owner may properly apply for a variance under zoning regulations.... Unless it appears otherwise, the equitable owner may be deemed agent for the holder of the legal title.... The trial court did not err in rendering judgment directing the issuance of the permit.” (Citations omitted.) Id., at 73–74, 127 A.2d 67.
We disagree that Loew applies in the present case because the conclusion in Loew that the plaintiff was the “beneficial” or “equitable” owner of the property was based on the fact that the corporation held legal title to the property throughout the proceeding. In this case, Handsome lost title to the property by way of the strict foreclosure judgment prior to the granting of the permit extension and the subsequent appeal, and, therefore, the Cascellas do not have the same relationship to the current title holder, MD Drilling, that the plaintiff had with the corporate title holder in Loew. Moreover, Loew did not involve the effect of a foreclosure action on a party's aggrievement and standing to bring a zoning appeal, which is controlled by the statutory requirement of aggrievement. Accordingly, Loew is distinguishable from the present case on both factual and legal grounds.
Insofar as the trial court relied on DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn.App. at 376–77, 588 A.2d 244, in which the Appellate Court concluded that an agreement between the property owner and his son permitting the son to use the property for a car dealership created in the son a sufficient property interest to allow the son's appeal from a zoning decision that affected the property, we acknowledged DiBonaventura and other similar cases in Cambodian Buddhist Society but rejected them as inapplicable. Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 398 n. 9, 941 A.2d 868 ; see, e.g., Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 669–70, 899 A.2d 26 (developer that had oral agreement with landowner to enter into long-term lease had sufficient interest in property to appeal from zoning decision affecting property); Primerica v. Planning & Zoning Commission, supra, 211 Conn. at 94–95, 558 A.2d 646 (lessee has sufficient interest in property to appeal from zoning decision affecting property). We explained that “cases in which this court and the Appellate Court have concluded that nonowners of property can have a sufficient interest in the property to have standing to appeal from a zoning decision affecting the property ... are distinguishable ... because they involved long-term agreements between the landowner and the nonlandowner concerning the nonlandowner's commercial use of the property that arguably gave rise to a property interest.” (Citations omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, at 398 n. 9, 941 A.2d 868.
In the present case, the Cascellas occupy a very different position than that of the plaintiffs in the foregoing cases. As corporate officers, they never represented themselves as individual partners with Handsome in connection with the development of the property. In addition, all communications from local authorities were directed to Handsome, and the Cascellas acted in their capacities as corporate officers in representing the interests of Handsome, not as independent individuals representing their own distinct interests. Thus, there could never be an agreement between the Cascellas and Handsome with respect to development of the property, as in the foregoing cases, because the Cascellas are part of Handsome. We determined in Cambodian Buddhist Society that, “because any injuries that [the president] suffered as a result of the [planning and zoning] commission's decision [were] in reality derivative of injuries to [the society], the injuries [were] not direct but [were] indirect, and [he had] no standing to assert them.” (Emphasis added; internal quotation marks omitted.) Id., at 396, 941 A.2d 868. In the present case, as well, we conclude that the Cascellas demonstrated no direct injury or aggrievement, and, therefore, the trial court improperly concluded that they had standing to appeal.
In light of our conclusions that Handsome and the Cascellas lack standing, we need not reach the other issues raised in this appeal.
The judgment is vacated and the case is remanded with direction to dismiss the appeal for lack of jurisdiction.
In this opinion ROGERS, C.J., and EVELEIGH, ESPINOSA, ROBINSON and VERTEFEUILLE, Js., concurred.PALMER, J., dissenting.Consistent with the findings and conclusion of the trial court, the evidence in the present case clearly and unequivocally establishes that the named plaintiff, Handsome, Inc. (Handsome), was aggrieved by the decision of the defendant, the Planning and Zoning Commission of the Town of Monroe (commission), which granted Handsome a conditional and limited extension to a special exception permit that the commission previously had awarded Handsome. Although Handsome was divested of legal title to the subject property by virtue of a foreclosure action brought by MD Drilling & Blasting, Inc. (MD Drilling), pursuant to which legal title passed to MD Drilling, it is uncontested that, prior to the law day in that action, Handsome, which has been in possession of and operated an excavation business on the property for more than one decade, entered into an agreement with MD Drilling to give Handsome the rights (1) to remain in possession of the property, and to continue its excavation operation and related activities, while it paid its relatively modest debt to MD Drilling, and (2) to regain title to the property upon satisfaction of that debt. Throughout the proceedings in the present case, Handsome has relied on this agreement—with which it has fully complied—in support of its claim of aggrievement, and the trial court expressly found that the agreement supported Handsome's claim that it was aggrieved, even though MD Drilling holds legal title to the property.
Todd Cascella, Handsome's president, and Mona Cascella, Handsome's secretary, also are plaintiffs in the present case.
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. 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.
As I explain more fully hereinafter, the trial court explained that Handsome was aggrieved by the commission's decision due to the fact that, because MD Drilling has never filed a certificate of foreclosure in the land records, Handsome is the record owner of the property. The majority rejects this determination by the trial court because mere “record” ownership of property, without more, is insufficient to establish aggrievement, a point with which I generally agree. The majority, however, ends its analysis there and refuses to address the trial court's further finding that Handsome was aggrieved in light of its agreement with MD Drilling giving Handsome the right to continued possession of the property, as well as the right to regain ownership of the property, as long as Handsome satisfies its debt to MD Drilling.
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 trial court did—the majority concludes that Handsome was not aggrieved solely because it does not have legal title to the property, a fact that neither party disputes and that we repeatedly have concluded is not required to establish aggrievement. In refusing to acknowledge the significance of the agreement between Handsome and MD Drilling for aggrievement purposes, the majority reaches a conclusion that flies in the face of the well settled principle that “[t]he conclusion reached by the [trial] court [on the question of aggrievement] cannot be disturbed on appeal unless the subordinate facts found do not support it.” (Internal quotation marks omitted.) McNally v. Zoning Commission, 225 Conn. 1, 8, 621 A.2d 279 (1993). Contrary to the majority's conclusion, the record fully supports the trial court's finding that Handsome had standing to challenge the commission's decision because it was aggrieved by that decision, even though it does not hold legal title to the property. Indeed, the undisputed facts establish conclusively that Handsome was aggrieved. Consequently, the majority's conclusion is both wrong as a matter of law and manifestly unfair to Handsome, which is entitled to defend the trial court's ruling that the commission's decision concerning Handsome's application for a permit extension was unlawful in certain important respects. Because Handsome was aggrieved by the commission's decision, the majority has improperly deprived Handsome of its right to a decision by this court on the merits of the commission's appeal. I therefore respectfully dissent.
Although Handsome filed motions on June 22, 2010, and July 22, 2010, “with the consent of ... MD Drilling ... and pursuant to a settlement agreement between the ... parties” to further postpone the law day until July 27, 2010, and September 28, 2010, respectively, it appears from the record of the foreclosure proceeding that the trial court took no action on either motion.
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.In the interim, on April 13, 2010, MD Drilling entered into a written agreement with Handsome and Cascella & Son that allowed Handsome to satisfy the $27,271.55 judgment and to maintain possession and, ultimately, to regain ownership, of the property. Under the agreement, Handsome and Cascella & Son are required to make monthly payments of $500 until the judgment is paid in full. In return, MD Drilling agreed that Handsome may continue its excavation operations on the property and otherwise remain in possession of the property. The agreement further provides that, upon satisfaction of the debt, the judgment of foreclosure will be “ and void” and the property will revert to Handsome. MD Drilling also agreed to file periodic requests to extend the law day as long as Handsome and Cascella & Son were not in default under the agreement. Although it appears from the record in the foreclosure action that the law day was not postponed beyond June 29, 2010, MD Drilling never recorded a certificate of foreclosure in the Monroe land records. The trial court found that Handsome was not in default of the agreement and that Handsome has continued certain operations on the property and maintained equipment there.
Although the trial court found that the agreement provided that the foreclosure judgment would be and void upon payment of the debt, the language of the agreement suggests a different meaning. Specifically, the agreement provides that Handsome and Cascella & Son “stipulate to a judgment of possession and an order of ejectment” in favor of MD Drilling and that the “stipulation shall be held in escrow” as long as Handsome and Cascella & Son are not in default of the agreement, and that “[s]aid judgment and order will be and void when the ... debt is satisfied.” Thus, it appears that the parties intended that payment of the debt would ify the judgment of possession and order of ejectment, not the judgment of strict foreclosure. Nevertheless, because this discrepancy does not alter my conclusion that Handsome was aggrieved, and because neither party challenges the trial court's finding that the agreement was intended to ify the judgment of strict foreclosure, for purposes of this appeal, I presume that the trial court's finding regarding the intent of the agreement was correct. Moreover, the intent of the parties to the agreement is clear.
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 to dismiss, arguing, inter alia, that legal title to the property is not required to establish aggrievement and that Handsome's continued possession of the property, together with its agreement with MD Drilling, which the plaintiffs attached as an exhibit to its supporting memorandum of law, was sufficient to establish aggrievement. In response, the commission expressly acknowledged the plaintiffs' contention that the agreement with MD Drilling afforded Handsome standing to maintain the present action as a nonowner. The commission claimed, however, that the trial court could not consider whether Handsome's agreement with MD Drilling provided a basis for establishing aggrievement because the plaintiffs had not alleged those grounds in their complaint; the plaintiffs had alleged, rather, that Handsome was the “owner” of the property. The trial court rejected the commission's argument, and, on September 11, 2012, denied the commission's motion, albeit “without prejudice to raising ... the issue of aggrievement” at a later date.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, 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 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.”
Prior thereto, on December 10, 2012, the court once again heard argument from counsel on the issue of 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., at 355, 114 A.2d 216 ; 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 (1984) ; had obtained an oral contract to enter into a long-term lease; Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 669 (2006) ; held a leasehold interest; Michel v. Planning & Zoning Commission, 28 Conn.App. 314, 324–25 [612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824] (1992) ; or held a security interest in the property. Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 [755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753] (2000).”
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. at 664, 899 A.2d 26. 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, at 395, 941 A.2d 868.
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. at 393, 941 A.2d 868. 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. at 666, 899 A.2d 26. 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., at 670, 899 A.2d 26.
In Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 660, 899 A.2d 26, 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., at 662, 668–70, 899 A.2d 26. 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., at 662–63, 899 A.2d 26. 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, General Statutes § 52–550, and, therefore, was unenforceable. Id., at 663–64, 899 A.2d 26. In reversing the trial court's judgment, we rejected the planning and zoning commission's assertion that the lack of a legally enforceable agreement was fatal to Moutinho's standing to appeal. See id., at 668–70, 899 A.2d 26. We concluded, rather, that “a landowner and a nonowner developer need not have a written, legally enforceable agreement when other facts, such as the existence of a credible, oral agreement, establish that the developer has a specific, personal stake in the property.” Id., at 668–69, 899 A.2d 26. “When the evidence establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, a substantial and legitimate interest in the property exists.” (Internal quotation marks omitted.) Id., at 669–70, 899 A.2d 26. We explained that it was irrelevant whether the agreement was legally enforceable under § 52–550 because that statute “governs disputes that arise between the parties to a contract ... and [a zoning appeal] does not involve a contract dispute....” (Citation omitted; footnote omitted.) Id., at 670, 899 A.2d 26. Because the evidence established that Moutinho and the property owner intended to abide by their agreement, we concluded that Moutinho was aggrieved by the planning and zoning commission's denial of his applications. Id.
General Statutes § 52–550 provides in relevant part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property; [or] (5) upon any agreement that is not to be performed within one year from the making thereof....”
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. at 668–69, 899 A.2d 26 ; 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, at 370–72, 376–77, 588 A.2d 244. 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., at 376, 588 A.2d 244. 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., at 373, 588 A.2d 244. 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., at 376–77, 588 A.2d 244. 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., at 376, 588 A.2d 244. 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., at 377, 588 A.2d 244.
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. at 93–95, 558 A.2d 646 (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. at 767, 755 A.2d 329 (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, 2001 WL 1479111 (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 of aggrievement is a practical and functional one designed to [ensure] that only those with a genuine and legitimate interest can [pursue] an [action in court].” (Internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 54–55, 602 A.2d 566 (1992).
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. 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.
The commission acknowledged at oral argument before this court that, pursuant to the agreement, Handsome has the right to regain title to the property upon satisfaction of its debt to MD Drilling.
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., at 634, 295 A.2d 566. 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 present case, although Handsome was divested of its ownership interest in the property, it did not lose its appealable interest because, as the trial court found, Handsome was aggrieved by virtue of its ongoing possession of the property and its right to reacquire ownership of the property from MD Drilling under the agreement between Handsome and MD Drilling. Only by failing to acknowledge that legal title is not required to establish aggrievement and by failing to recognize the significance of the radically different facts in the present case can the majority assert that this case is no different from Southbury.
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. 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. 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] in order for a party to satisfy the test for aggrievement.” In making this determination, the trial court expressly relied on Handsome's written agreement with MD Drilling, which the plaintiffs had introduced as an exhibit at the evidentiary hearing on the matter. The trial court also found that Handsome was not in default of its obligations under the agreement. Finally, in reaching its conclusion, the court relied on several cases in which this court concluded that legal title to the property is not required to establish aggrievement. In light of the clarity of the trial court's reasoning in support of its conclusion that Handsome's agreement with MD Drilling provides an interest sufficient to establish aggrievement, the majority's refusal to address this finding on the ground that it was not adequately briefed by Handsome—and to vacate the judgment of the trial court without considering the merits of its decision—is simply untenable. Furthermore, even if Handsome could be deemed to have waived its right to prevail on appeal by virtue of the plaintiffs' failure to adequately brief the import of Handsome's agreement with MD Drilling on the issue of aggrievement, the majority's assertion that the plaintiffs did not adequately brief that issue is flatly contradicted by the record. The plaintiffs explain in their brief to this court that Handsome “is still in possession of the premises,” as permitted by the agreement, and that “Handsome clearly retains a valuable equitable interest in the premises as a result of its agreement with MD Drilling to ‘void’ the foreclosure upon completion of [the] payment arrangement.” Consistent with the foregoing points, the plaintiffs further explain that “a judgment in Handsome's favor would be of great benefit to Handsome because the huge financial burden the commission has attempted to impose will be lifted and Handsome will have five years to complete the construction of the building [to be erected on the property] and ... would be able to sell excess earth materials to contractors with state and local governments who cannot purchase materials presently from Handsome because Handsome does not have a valid permit in place.” In addition, Handsome seeks to have this court affirm the judgment of the trial court in all respects, including, of course, its finding of aggrievement, and so we necessarily must evaluate the reasoning and conclusion of that court, as reflected in its memorandum of decision, in reviewing the parties' claims concerning aggrievement. Notably, all of the cases relevant to the issue are set forth in the trial court's memorandum of decision.
To the extent that the majority suggests that Handsome was required to brief the issue of its agreement with MD Drilling as an alternative ground for establishing aggrievement, that contention is incorrect. Simply stated, Handsome was not required to treat that agreement as an alternative ground for establishing aggrievement because the trial court relied expressly on that agreement in concluding that Handsome was aggrieved.
The majority insists that the trial court did not rely on Handsome's agreement with MD Drilling in support of its conclusion that Handsome's interest in the property was sufficient to establish aggrievement but, rather, that the court concluded only that Handsome was aggrieved as the record owner of the property, and that the agreement merely “reinforced” that record ownership interest. Footnote 7 of the majority opinion. This restatement of the trial court's decision is not accurate, primarily because it simply makes no sense to say that a possessory interest in property, coupled with the right to regain full ownership of that property, somehow reinforces a party's record ownership of the property. It is plain from the trial court's decision that the court did rely on the agreement to support its conclusion that Handsome was aggrieved. After concluding that Handsome was aggrieved due to its status as the record owner of the property, the court went on to state that the agreement “solidifie[d] and enhance[d] Handsome's interest in the property.” Immediately following that sentence, the court underscored its reliance on the agreement by noting that “[t]he judgment of strict foreclosure [rendered] in favor of MD Drilling ... [was] not sufficient to deny aggrieved status to Handsome.... Legal title to property is not required in order for a party to satisfy the test for aggrievement.” It could hardly be clearer that, as the trial court expressly found, Handsome's agreement with MD Drilling strengthened and augmented Handsome's claim of an interest in the property—above and beyond its record ownership—sufficient to establish aggrievement.
Moreover, even if the trial court's decision could be characterized as ambiguous in some way—and that would not be a fair characterization—it is axiomatic that we read “an ambiguous trial court record so as to support, rather than contradict, its judgment.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 164, 612 A.2d 1153 (1992). This is especially true when, as in the present case, the trial court's underlying factual findings unquestionably establish that Handsome was aggrieved by the commission's decision. Indeed, as I noted previously, if the trial court had concluded that Handsome's agreement with MD Drilling was insufficient to establish aggrievement, we would be required to reject that conclusion as clearly contrary to law. See Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 669–70, 899 A.2d 26 (rejecting trial court's conclusion that oral agreement between parties was insufficient to establish aggrievement).
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 considerationof the agreement for purposes of its aggrievement determination.
Thus, although, as I indicated previously, this court has observed that a party must plead and prove facts establishing aggrievement; see, e.g., Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 664, 899 A.2d 26 ; the purpose of that requirement is merely to ensure that the court is not called on to decide a case in which the party seeking relief does not have standing to obtain it; see id., at 664–65, 899 A.2d 26 ; because, unless that party has standing, the court cannot decide the case due to a lack of subject matter jurisdiction. See, e.g., One Country, LLC v. Johnson, 314 Conn. 288, 297, 101 A.3d 933 (2014). Notably, the majority does not claim otherwise. In the present case, it is perfectly clear that, as the trial court found, Handsome had standing, in light of its agreement with MD Drilling, to challenge the adverse decision of the commission, and it is equally clear that Handsome continues to have standing, in light of that agreement, to defend this appeal.
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 “[t]he [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 prerequisite to aggrievement. Indeed, as I previously noted, the commission, in its response to the plaintiffs' objection to the motion to dismiss, expressly acknowledged their contention that Handsome's agreement with MD Drilling afforded Handsome standing to maintain the present action as a nonowner. As the foregoing amply demonstrates, the majority is incorrect in asserting that the commission is entitled to reversal of the trial court's judgment in favor of the plaintiffs on the ground that Handsome has failed to adequately defend the trial court's finding that its agreement with MD Drilling creates an interest sufficient to establish aggrievement. Because the majority addresses only whether Handsome was aggrieved as the owner of the property, it refuses to address Handsome's argument that its interest in the property would be harmed by the conditions imposed in connection with the granting of the permit extension, instead offering the conclusory assertion that “[w]e need not address this claim ... in light of our previous conclusion that Handsome had no ownership interest in the property.” Text accompanying footnote 7 of the majority opinion. For the reasons that I have explained, and contrary to the conclusion of the majority, Handsome's interest in the property is more than sufficient for standing purposes. Because the additional conditions imposed by the commission in connection with its granting of the permit extension pose a significant barrier to Handsome's continued use of the property, in accordance with its agreement with MD Drilling, Handsome is harmed by the commission's decision to impose those additional conditions, and Handsome therefore was clearly aggrieved by the commission's decision.
The plaintiffs' objection to the commission's motion to dismiss contains the following statement with respect to Handsome's agreement with MD Drilling: “In response to the [commission's] claims [seeking dismissal of the plaintiffs' appeal to the Superior Court, the plaintiffs submit] in conjunction with this objection [to the commission's motion], as exhibit A, a copy of a settlement agreement between MD Drilling ... and Handsome ... dated April 13, 2010, [in which] Handsome ... agreed to pay MD Drilling [$500] per month until the debt is paid in full, and the parties agreed that Handsome ... retained possession of 125 Garder Road and that ‘said judgment and order shall be and void when the ... debt is satisfied.’ The agreement also obligated MD Drilling to periodically request extensions of the law day so long as Handsome ... was not in default of its payment agreement. There is no dispute that Handsome ... has continued in possession of the property to this date.” The fact that the commission clearly understood that Handsome's claim of aggrievement was based on its possessory and potential future ownership of the property is reflected in the commission's reply memorandum of law to the plaintiffs' objection, in which it characterizes Handsome as “asserting that [it] had entered into an agreement with MD [Drilling] which [it] contend[s] grants [it] standing to maintain this action as a nonowner. ” (Emphasis in original.)
The majority apparently contends that the plaintiffs somehow abandoned or waived this claim by failing to raise it again following the evidentiary hearing on the commission's motion to dismiss. This contention is wholly without merit and utterly unfair to Handsome. As the majority acknowledges, the plaintiffs clearly and unequivocally raised the claim in their pretrial objection to the commission's motion to dismiss. Thereafter, the court held a brief evidentiary hearing at which the plaintiffs introduced Handsome's agreement with MD Drilling through Todd Cascella, who also testified that Handsome was in compliance with that agreement, to substantiate the standing claim that they had raised in their objection to the commission's motion to dismiss. Indeed, there would have been no reason for the plaintiffs to adduce such evidence if they were not relying on it for purposes of establishing standing. As the plaintiffs' counsel explained at oral argument before this court, the plaintiffs simply did not address the issue of standing at all in their posttrial brief—they instead addressed other issues that also needed to be resolved at that time—because they had nothing to add to their pretrial brief. Moreover, the record is clear that both the commission and the trial court fully recognized that the plaintiffs were relying on Handsome's possessory interest under Handsome's agreement with MD Drilling to establish standing. With respect to the commission, its counsel expressly argued, immediately following the evidentiary portion of the hearing, that, contrary to Handsome's claim, the agreement was not sufficient to establish Handsome's aggrievement. Of course, the trial court also recognized that the plaintiffs were relying on the agreement in support of their claim of aggrievement: the court pressed counsel for the commission on this point at the hearing and then rejected counsel's contention in finding that Handsome was, in fact, aggrieved. In such circumstances, it is nothing short of a miscarriage of justice to conclude that the plaintiffs failed to preserve the issue of Handsome's aggrievement when they thoroughly briefed the issue in the trial court and then supplemented their brief with the necessary evidence, namely, Handsome's agreement with MD Drilling and Handsome's continued compliance with that agreement.
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. 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. at 153, 851 A.2d 1113 ; 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. Accordingly, I dissent.
Although the plaintiffs successfully challenged the commission's decision in the trial court, under the majority's holding, Handsome lacks standing to defend this appeal because it no longer has an interest in the subject property. In such circumstances, the remedy is to vacate the judgment of the trial court and to remand the case to that court with direction to dismiss Handsome's appeal from the commission's decision. Thus, under the majority's decision, the trial court's ruling sustaining the plaintiffs' appeal is and void.
Compounding the unfairness of the majority's decision, the commission conceded in the trial court that its retroactive approval of the permit extension was contrary to law, and it has not challenged the trial court's ruling with respect to that issue. Nevertheless, because the majority concludes that Handsome does not have standing to challenge the commission's decision, the commission's unlawful retroactive approval of the extension will go unremedied.
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