Opinion
No. CV03-0082635
March 18, 2005
MEMORANDUM OF DECISION
I. INTRODUCTION
The Plaintiff, owner of property known as 839 Tolland Turnpike, Manchester, Connecticut, appeals the decision of the Defendant, the Manchester Planning and Zoning Commission (Commission), denying its application requesting that the Commission delete the provision "and slopes greater than 15%" from Article II, Section 7.02.03(c) of the Manchester Zoning Regulations. Accordingly, the Plaintiff brings this appeal pursuant to General Statutes § 8-8. In response to the Plaintiff's complaint the Commission filed an answer and two special defenses in which it claims 1) any irregularities alleged concerning the Commission's adoption of the regulations at issue were cured by the Commission's consideration and action on the Plaintiff's application dated May 15, 2003; and 2) any claim pertaining to the Commission's action taken on April 20, 1998 is untimely and barred by the statute of limitations. The court has reviewed the record, the briefs of the parties, both pre- and post-trial, and considered the arguments and evidence presented at the hearing of this matter on October 19, 2004.
II. BACKGROUND
The record filed by the Commission reveals the following facts. Article II, Section 7.02.03(c) of the Manchester Zoning Regulations states that in a Planned Residence Development (PRD) zone multi-family dwellings are permitted subject to the requirement that "[t]he total number of multi-family dwelling units shall not exceed ten (10) per acre of the multi-family dwelling site excluding wetlands and slopes greater than 15%." This provision was added to the regulations in 1998. (Return of Record [ROR], Item 1.) Prior to that time the regulation did not include the exclusion for wetlands and slopes. (ROR, Item 12.) The change was enacted as part of the Commission's adoption of regulations regarding Elderly Housing Development which also follow the PRD regulations. (ROR, Item 12.) On May 15, 2003 the Plaintiff filed an application with the Commission requesting the deletion of the phrase "and slopes greater than 15%" from the regulation. (ROR, Item 22.) The Plaintiff's land consists of 43½ acres on the north side of the Tolland Turnpike in Manchester. (ROR, Item 1.) Applying the 15% slope provision to this land eliminates 7.15 acres from development. (ROR, Item 1.) This reduces the allowable units on the site from 392 to approximately 320. (ROR, Item 1.)
On September 3, 2003 the Commission conducted a public hearing regarding the Plaintiff's application. (ROR, Item 1.)
On September 15, 2003 the Commission discussed the proposal and voted to deny the zoning regulation change requested. (ROR, Item 3.) On September 18, 2003 notice of the Commission's decision was published. (ROR, Item 4b.)
The Plaintiff, in its brief, sets forth the following arguments in support of its appeal. First, it claims that the Commission's action of April 20, 1998 in amending Article II, Section 7.02.03(c) of the zoning regulations related to the density of multi-family dwellings in the PRD zone was illegal, the Commission having failed to give proper legal notice of its intention to the public either before or after the public hearing conducted thereon. Second, the Plaintiff argues that Section 8-8(r) of the General Statutes limiting the time for taking an appeal from an action of a Commission which fails to comply with the notice requirements of the law to one year after the action was taken, does not apply to the 1998 action by the Commission, and therefore affords the Defendant with no relief in the instant action.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from a decision of, a planning and zoning commission to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283 (1985).
A. Aggrievement
General Statutes § 8-8(b) provides that "any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located." General Statutes § 8-8(a)(2) defines a "board" as including a combined planning and zoning commission.
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409 (2002).
In RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 662-64 (2005), the Appellate Court reiterated the law on standing to appeal a decision from a planning and zoning commission. The court stated: "In Gladysz v. Planning Zoning Commission, 256 Conn. 249, 255-57, 773 A.2d 300 (2001), our Supreme Court reviewed the standards that determine whether an appellant in a land use case is aggrieved and has standing to appeal. The court stated: `The terms aggrievement and standing have been used interchangeably throughout most of Connecticut jurisprudence. We previously have stated that the question of aggrievement is essentially one of standing . . . Although these two legal concepts are similar, they are not, however, identical. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . We specifically have applied this standard to cases involving zoning disputes . . . Because aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 535.' (Citations omitted; internal quotation marks omitted.) Id. `Conversely, the standard for determining whether a party has standing to apply in a zoning matter is less stringent. A party need have only a sufficient interest in the property to have standing to apply in zoning matters . . . [I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest . . .' (Citations omitted; internal quotation marks omitted.) Id., 257. `Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . 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.' (Emphasis added; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004)."
At the trial Richard P. Hayes testified that he is a member of the limited liability company, Hayes Family Partnership, and that the Partnership owns 839 Tolland Turnpike. The property is in a Rural Residential Zone. The record also reveals additional facts relevant to the issue of aggrievement. The Plaintiff's property is bounded on two sides by PRD multi-family residential developments. (ROR, Item 1). A PRD zone is a floating zone. (ROR, Item 1). The Plaintiff had applied for such a designation but had withdrawn its application for technical reasons. (ROR, Item 1). The density restriction of the subject regulation only applies to the Elderly Housing Development and PRD zones. (ROR, Item 1). There are few parcels left undeveloped in the town to which the restriction would apply and the Plaintiff's parcel is one of them. (ROR, Item I).
In Harris v. Zoning Commission, 259 Conn. 402 (2002) the court was faced with a situation very similar to that presented here. The zoning commission proposed, and later adopted, an amendment to the definition of "lot and area" in the New Milford zoning regulations, applicable only to residential zones, which excluded wetlands, watercourses and land with a 25 percent slope or greater from the calculation of the total horizontal area of a parcel of land for the purpose of determining whether a parcel conforms to the minimum lot area required for development. The ultimate effect of the amendment on undeveloped parcels of land was a reduction of the number of potential lots for each parcel. The plaintiffs appealed claiming that they were statutorily aggrieved by the zoning commission's decision because they owned land that was subject to the amendment and that they were classically aggrieved because the amendment affects only specific parcels in the town and the plaintiffs owned parcels that were affected adversely. The Court stated: "It is well settled that `[p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Connecticut Business Industry Assn., Inc. v. Commission on Hospitals Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990) . . . Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.' (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 637, 662 A.2d 1251 (1995). Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. See, e.g., Med-Trans, Inc. v. Dept of Public Health Addiction Services, 242 Conn. 152, 159, 699 A.2d 142 (1997); Bakelaar v. West Haven, supra, 1193 Conn. 65 . . . `The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [ supra, 193 Conn. 65] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . Light Rigging Co. v. Dept. of Public Utility Control, [ 219 Conn. 168, 173, 592 A.2d 386 (1991)].' (Citation omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 234 Conn. 638." Harris v. Zoning Commission, 259 Conn. 402, 409-10 (2002). In Harris the trial court held that the Plaintiffs were classically aggrieved because the court found that they had established an identifiable legal interest that the community as a whole does not share in that the plaintiffs owned property affected by the amended regulations and the regulations affected a limited number of acres. On appeal the Supreme Court stated: "The precise question raised by the zoning commission is whether, as a matter of law, the plaintiffs can establish a specific personal and legal interest, as distinguished from a general interest, in a zoning amendment that applies throughout the town. We were confronted by a similar factual scenario in Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 374, 376, 610 A.2d 617 (1992), wherein the plaintiffs appealed the decision of the defendant commission amending its regulations to increase the minimum lot area in a particular zone from 40,000 to 80,000 square feet. Although the question of aggrievement was not directly at issue, we noted in dicta that the plaintiffs had established both classical and statutory aggrievement. See id., 376 n. 3, citing General Statutes § 8-8(b) and Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502-03, 264 A.2d 566 (1969). Relying on Timber Trails Corp., the Appellate Court in Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 292, held that owners of large, subdividable parcels of land had a specific personal and legal interest in the decision of the defendant commission amending the town's subdivision regulations to exclude land containing wetlands and slopes of 25 percent grade or greater in calculating the total horizontal area of property. The Appellate Court based its conclusion on the evidence before it demonstrating that, although the amendment applied, by it terms, throughout the town, most of the land in the town, in practice, was not affected, and the plaintiffs each owned land that was affected. Id. . . . we read the Appellate Court's analysis in Lewis to be consonant with our line of cases standing for the principle that a specific personal and legal interest in the subject matter of a zoning commission's decision that satisfies the first prong of the two-part test for classical aggrievement cannot be an interest shared by the community as a whole. In establishing such a specific personal and legal interest, we can discern no meaningful difference between a zoning amendment that expressly affects only a portion of a town's land and one that does so by its application. In the present case, the trial court reasonably could have concluded from the evidence presented that the amendment, in practice, affects only a limited portion of land in the town, that the plaintiffs own some of the affected land, and that the plaintiffs, therefore, have a specific personal and legal interest in the zoning commission's decision that the community as a whole does not share. Accordingly, The trial court properly concluded that the plaintiffs established the first prong of the two-part test for classical aggrievement." (Footnote omitted.) Harris v. Zoning Commission, 259 Conn. 402, 413-15 (2002).
The Commission argues that the Plaintiff's claims of injury are hypothetical and speculative and not sufficient to establish aggrievement because its property is not in a PRD zone and there may be other reasons why it won't be allowed to build all the units it desires. Although the Plaintiff's land is not in the zone affected by the amendment, that zone is a floating zone, and, as a practical matter, it is only available for application to a limited number of areas in the town, one of which includes the area where the Plaintiff's land is located. In addition, the application of the requirements of the amended regulation will reduce the number of units that the Plaintiff can develop on its land.
To establish aggrievement one need not prove a certainty of actual injury but only a possibility of it. The evidence before the court is sufficient to meet this test. Therefore the court concludes that the Plaintiff is classically aggrieved by the Commission's decision and has standing to maintain this appeal.
B. Timeliness and Service
General Statutes § 8-8(b) provides: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.
On September 18, 2003, notice of the Commission's decision was published in The Journal Inquirer. (ROR, Item 4b.) On October 2, 2003, the Plaintiff's appeal was commenced by service of process upon Joseph Camposeo, town clerk of Manchester. (Marshal's Return.)
The essence of the Plaintiff's appeal, however, is that the Commission's action of April 20, 1998 in amending the regulations relating to the density of multi-family dwellings in a PRD zone was illegal because the Commission failed to give proper legal notice of its intentions to do so to the public. The Plaintiff argues that it can still pursue this claim despite the Commission's defense that the provisions of General Statutes § 8-8(r) bar such a claim. That statute provides: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action." The Plaintiff argues that the statute was effective July 1, 2000 and that the Public Act pursuant to which it was adopted, Public Act 99-238, was revised by Public Act 00-84 to provide that it applied only to "errors, irregularities and omissions occurring on or after January 1, 1999" and, therefore, not to the alleged error in the giving of notice of the adoption of the subject regulation in 1998.
Section 5 of Public Act 99-238 rewrote General Statutes § 8-8 adding subsection (r) which provided that: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken within two years of the date of that decision or action." That provision was to take effect July 1, 2000. Before the effective date, on May 16, 2000, the legislature passed Public Act 00-84 which provided in Section 3 that: "Section 8 of public act 99-238 is repealed and the following is substituted in lieu thereof: [This act] Public act 99-238 shall take effect from its passage, except that sections 1 to 6, inclusive, shall take effect July 1, 2000, and sections 1, 2 and 3, subsection (f) of section 4 and sections 5 and 6 shall apply to errors, irregularities and omissions occurring on or after January 1, 1999." Subsequent to the adoption of Public Act 00-84, on May 26, 2000, the legislature adopted Public Act 00-108. That act provided that: "Section 8-8 of the general statutes, as amended by section 5 of public act 99-238, is repealed." The act amended Section 8-8 by eliminating the need for a recognizance on an appeal and allowed for the preparation of a transcript by other than the appellant agency. It left intact the provisions of subsection (r) in subsection (q). The act was effective October 1, 2000. No reference was made to Public Act 00-84 or its language regarding the application of certain of its sections to only errors, irregularities and omissions occurring on or after January 1, 1999.
General Statutes § 2-30b(a) provides that: "When two or more acts passed at the same session of the General Assembly amend the same section of the general statutes, or the same section of a public or special act and reference to the earlier adopted act is not made in the act passed later, each amendment shall be effective except in the case of irreconcilable conflict, in which case the act which was passed last in the second house of the General Assembly shall be deemed to have repealed the irreconcilable provision contained in the earlier act . . ." It cannot be said that the provisions of Public Act 00-84 and 00-108 are irreconcilable and the court could read the acts consistently and find them to provide that the time limitation of Subsection (r) ("q" at that time) applied only to errors made after January 1, 1999. Yet the legislature has continued to amend Section 8-8 and subsequent amendments do not reference the language of Section 3 of Public Act 00-84 nor does it appear in the codification of the statute. On May 31, 2001, the legislature adopted Public Act 01-47 which amended Section 8-8 to provide for a stay of proceedings while mediation of an appeal was pending and renamed subsection "q" to "r." On June 20, 2001, Public Act 01-110 was adopted and it specifically repealed subsection "q" of section 8-8 and amended it to state that: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action." (Emphasis added.) The legislature deleted the reference to "within two years of." In Public Act 01-195 the legislature made technical amendments to Section 8-8, not affecting the substantive language of subsection (q). Subsection (b) of Section 8-8 was amended by Public Act 02-74 to allow for appeals from decisions on site plans.
As noted above, since the enactment of Section 3 of Public Act 00-84, the legislature, in subsequent enactments, has not referenced or recognized its provisions. Consequently it is clear that the limiting language of that section is no longer in effect. It is not a court's function to read into a statute language which is clearly not there. Doe v. Manson, 183 Conn. 183, 188 (1981).
The Plaintiff argues that the language of Subsection 8-8(r) cannot be applied retroactively to defeat his claim because a statute cannot be applied retroactively to defeat substantive rights. However, the limitation of time in which to challenge an agency's actions for lack of notice set forth in the statute is similar to a statute of limitations. In that regard it has been stated: "the general proposition [is] that statutes of limitation are presumed to apply retroactively. See Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986); Andrulat v. Brook Hollow Associates, 176 Conn. 409, 412-13, 407 A.2d 1017 (1979); Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195-96, 286 A.2d 308 (1971). Although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not in the absence of any expressed intention to the contrary. Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632 (1962); E.M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941). Statutes of limitation are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . (Citation omitted.) Moore v. McNamara, supra, 22; Jones Destruction, Inc. v. Upjohn, supra, 195. Therefore, unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim. See Andrulat v. Brook Hollow Associates, supra, 413; Bohun v. Kinasz, 124 Conn. 543, 547, 200 A. 1015 (1938)." (Internal quotation marks omitted.) Roberts v. Caton, 224 Conn. 483, 488-89 (1993).
Subsection (b) of Section 8-8 also specifically states that: "Except as provided in subsections (c), (d) and (r) of this section . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located." Since the action of the Commission that the Plaintiff seeks to challenge in this appeal is not the action of the Commission to amend the regulations to delete language from the provisions of Section 7.02.03(c) but is, in essence, the action of the Commission adopting the provision in 1998, the statute bars the Plaintiff's claims. Appeals to court from decisions of planning and zoning commissions exist only under statutory authority and appellate jurisdiction can only be acquired and exercised in accordance with those provisions. Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, 208 Conn. 476, 479 (1988). The statute clearly prohibits an appeal from an action of the Commission claimed to have been made without proper notice beyond one year from the date of the action. The Plaintiff cannot overcome the court's lack of jurisdiction to adjudicate its claim by initiating a new proceeding with the Commission to amend the regulation to correct the error it claims in its adoption since such would defeat the plain intent of the statute.
CONCLUSION
For the reasons stated above, the Plaintiff's appeal is dismissed.
Jane S. Scholl, J.