Opinion
No. 07-4006907
May 30, 2008
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Konover Development Corporation, appeals from the decision of the defendant, the Groton Planning Commission, which denied the plaintiff's application for site plan approval for the construction of a large retail development in the Water Resource Protection District in the CB-15 zone. Groton Open Space Association (GOSA), Claude LaManque, Larry Croxton, Peggy Burdo, Raymond A. Belval and Kathy Ross have been served with process and appeared as intervenors in this action.
II FACTUAL BACKGROUND
Konover applied to the Commission for approval of a site plan for the construction of a retail use. The Commission denied the application stating the reasons for its decision. Notice of the Commission's decision was published on February 23, 2007. This appeal followed.
The property described in the site plan consisted of four separately owned parcels of land. When assembled, the four parcels would be just under 37 acres in area. Konover does not claim title to the four parcels, but in its complaint alleged that it has agreements to purchase the property and authority from the owners to apply for site plan approval.
In its brief, Konover stated that aggrievement was not in dispute. At trial on April 8, 2008, however, it became apparent that aggrievement was being contested and was a substantial issue in this case. Supplemental briefs addressed to this issue were submitted by Konover and the Commission on April 22, 2008.
III JURISDICTION
General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a 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, 278 Conn. 660, 664, 899 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . .'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." Statutory aggrievement is not claimed by plaintiff.
IV ANALYSIS
"Pleading and proof of facts that constitute aggrievement are essential prerequisites to the court's jurisdiction." Moutinho v. Planning Zoning Commission, supra, 278 Conn. 664. The court must first review the complaint to determine if plaintiff has properly alleged aggrievement. "The trial court must be satisfied, first that the plaintiff alleged facts which, if proven, would constitute aggrievement as a matter of law . . ." Beckish v. Manfort, 175 Conn. 415, 419 (1978). "If the plaintiff fails to allege such facts, the appeal must be dismissed for lack of subject matter jurisdiction. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals and Health Care, 226 Conn. 105, 121 (1993).
Unlike most complaints which come before the court, the complaint in this case does not specifically allege that Konover is aggrieved by the decision appealed from. R. Fuller, 9B Connecticut Practice Series: Land Use and Practice (3rd Ed. 2007) appendix form 10. The word aggrievement is not found in the complaint. The fact that the complaint does not contain the word aggrieved, however, is not essential. Board of Education v. State Department of Education, 39 Conn.Sup. 443, 447 (1983), aff'd., 198 Conn. 445 (1986).
In the complaint, although Konover does not specifically allege that it is aggrieved, it does allege sufficient facts that, if proven, would support a finding of aggrievement. Specifically, Konover alleges that it "has agreements to purchase property located at Gold Star Highway and Antonino Road in Groton (`the Property') and authority from the property owners to apply for site plan approval. (See authorizations, attached as Exhibit F.)" (Emphasis in original.) (Appeal Complaint, ¶ 2.) In Exhibit F to the complaint, Konover has attached unauthenticated copies of four documents that appear to be authorizations by the owners of the four parcels of land that are the subject of this appeal, authorizing Konover to apply for permits for the development of the property. If the allegations in the complaint and the documentation attached thereto were corroborated by admissible evidence, such allegations and evidence would be sufficient to establish that Konover has an interest in the property as a contract purchaser and developer of the property because a contract purchaser of land whose application is denied is aggrieved for the purposes of appeal. See Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 58 Conn.App. 441, 445-47, 755 (2000) (unlike in option contracts, a party to a contract to purchase land does not lose its obligations under the contract after the specified closing date passes and, therefore, retains its interest therein and remains aggrieved by a decision adversely affecting that interest).
Nevertheless, Konover has not offered adequate evidence to establish the facts necessary to demonstrate aggrievement. At the hearing on April 8, 2008, Konover presented four exhibits as well as the testimony of Michelle Carlson, vice president of Konover Development Corporation. During her testimony, Carlson stated that Plaintiff's Exhibits 1 and 2, which are each captioned "OPTION AGREEMENT," give Konover purchase rights to the property in question and remain in effect. She further testified that Plaintiff's Exhibits 3 and 4, which are each captioned "PURCHASE AGREEMENT," are also still in effect. Carlson did not testify as to the specific nature of Plaintiff's Exhibits 3 and 4, but she agreed that the four agreements "are the agreements that cover the purchase of all of the property in question on this application." A review of these exhibits reveals that the two option agreements, Plaintiff's Exhibits 1 and 2, have expired. They were executed on January 7, 2003, with several amendments extending the period through April 7, 2006, which is automatically extended "beyond the Initial Term, without the requirement of notice or other action by Optionee, for an additional period . . . which shall commence immediately upon the expiration of the Initial Term and terminate upon the earlier of the following: (i) thirty (30) days following receipt of all Approvals or the unappealable denial thereof or (ii) 11:59 p.m. on August 7, 2007." (Emphasis added.) Although the parties have not yet received an unappealable denial of the application, the alternate deadline of August 7, 2007 has passed. "Once the time limitation passes in an option contract, the authority to accept the offer and to establish a binding purchase and sale agreement no longer exists. Thus, upon expiration of an option contract, the offeree no longer possesses any legal right to accept the offer to purchase the land and therefore has no interest in the property." Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, supra, 58 Conn.App. 441, 445. Accordingly, these two exhibits do not support a finding of aggrievement because they fail to demonstrate that Konover has a continuing interest in the two parcels described therein.
By contrast, both purchase agreements, which relate to two parcels not addressed by the expired option agreements discussed above, remain in effect. Nevertheless, both of those agreements were executed after this appeal was commenced by service of process on March 2, 2007. The purchase agreement designated as Plaintiff's Exhibit 3 was executed on March 28, 2007, and the purchase agreement labeled as Plaintiff's Exhibit 4 was executed on July 17, 2007. Although both remain in effect at present, they fail to demonstrate that Konover had an interest in those particular parcels when this appeal was commenced.
"It is quite clear that in order to retain standing as an aggrieved person, 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 (1989). Similarly, it is not enough for a party to acquire such an interest only after the appeal is commenced, since General Statutes § 8-8 requires the plaintiff to establish that it was an aggrieved person at the time its appeal was taken. Foran v. Zoning Board of Appeals, 158 Conn. 331, 335-36, 260 (1969).
General Statutes § 8-8 provides in relevant part that "any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, may take an appeal to the superior court for the judicial district in which the municipality is located . . ." (Emphasis added.)
In its supplemental brief on the issue of aggrievement, the plaintiff argues that even if the option contracts are unenforceable, that fact would not defeat a claim of aggrievement. In so arguing, the plaintiff essentially maintains that a violation of the statute of frauds does not prevent a party to such an agreement from being aggrieved where the evidence shows that the parties intend to abide by the agreement. Similarly, it argues that the fact that the purchase agreements were signed after the appeal was commenced does not prevent the plaintiff from being aggrieved because the evidence shows that the plaintiff and the owners of the subject properties had agreements before the written agreements were signed. To demonstrate this, the plaintiff asserts that the fact that the agreements were later formalized in written contracts confirms that oral agreements were in force beforehand. Next, the plaintiff maintains that the commission's failure to raise this issue during the application hearings demonstrates that it was aware that agreements between the owners and the plaintiff existed.
The plaintiff also argues that the option agreements do not need to be witnessed in order to be enforceable. In light of the fact that the option agreements have expired, the court does not need to address this argument. The plaintiff does not address the fact that the option agreements have expired.
These arguments fail because, as discussed above, the plaintiff has presented no evidence of aggrievement other than the written option agreements and purchase agreements and the testimony of its vice president explaining her understanding of the significance of those documents. No evidence was offered regarding any oral agreements or any other understanding between the plaintiff and the property owners concerning their intent with respect to the property outside of those written agreements. Its argument that the fact that the agreements were later signed indicates that an agreement must have existed beforehand is illogical. The fact that contracts were signed simply has no bearing on whether the parties had a similar agreement beforehand. Moreover, the commission's failure to raise the issue of the plaintiff's interest in the property during the hearings is irrelevant to whether they had and continue to have an interest in the property throughout this appeal.
Next, relying on Zocco Builders, LLC v. Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV 05 4003571 (May 16, 2007, Harleston, J.), the plaintiff asserts that even if it did not have agreements with respect to the property, the court must find that the plaintiff is aggrieved because the plaintiff and all property owners were named parties to the applications. This reliance is misplaced. In Zocco Builders, LLC, the court found that the plaintiff developer was aggrieved not only because it had submitted an application to the commission, but also because it held an option to purchase the property. These two findings were necessary because, in order to be classically aggrieved, a party must "demonstrate a specific, personal and legal interest in the subject matter of the decision" and that "the agency's decision has specially and injuriously affected that specific personal or legal interest." See Mountinho v. Planning Zoning Commission, supra, 278 Conn. 665. In Zocco Builders, LLC, where the plaintiff met these two requirements by demonstrating (1) an ownership interest in the property by way of an option to purchase and (2) that its application has been denied. The plaintiff would not have been aggrieved in that case, as the plaintiff suggests, merely by demonstrating that the commission had denied its application, because that relates only to the second prong of the classical aggrievement test.
Finally, the plaintiff relies on RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 672, 867 A.2d 97 (2005), for the proposition that a plaintiff's participation in the application process demonstrates that it has a specific, legal and personal interest in the subject matter of the commission's decision sufficient to support a finding of aggrievement. In RYA Corp., the trial court had found that "RYA was aggrieved because it stood to profit from performance of the agreement between [the owner of the property and the owner of RYA]." Id. The Appellate Court upheld this finding because "the record before the court permitted it inferentially to find that RYA had an agency relationship with [the owner of the property and the owner of RYA]. We may presume that RYA's participation in the subdivision plan was not intended to be eleemosynary. It follows that RYA had a specific, personal and legal interest in the approval of its subdivision application." Id.
The plaintiff's reliance on RYA Corp. is misplaced as well. In RYA Corp., the record contained evidence demonstrating that one of the plaintiffs, RYA, would profit from the performance of the agreement between the owner of the property and the owner of RYA. In the present case, no such evidence has been submitted. Moreover, to interpret the Appellate Court's decision in RYA Corp. to mean that any applicant whose application is denied is aggrieved would be contrary to the well-established requirements that the plaintiff must have an interest in the subject matter of the commission's decision at the time the appeal is taken and that the plaintiff retain that interest throughout the appeal. Although the court presumed that participation in the application process was not intended to be eleemosynary in RYA Corp., the record in that case supported such a presumption because it demonstrated that RYA was to profit from the approval of the application. Further, even if the court were to presume in the present case that the plaintiff's participation in the application before the commission was not eleemosynary, such a presumption would not overcome the requirement that the plaintiff must demonstrate that it has retained an interest in the subject matter of the commission's decision throughout the appeal. This failure precludes this court from finding that the plaintiff is aggrieved. See Primerica v. Planning Zoning Commission, supra, 211 Conn. 94 ("It is quite clear that in order to retain standing as an aggrieved person, 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.]).
V. CONCLUSION
For the reasons discussed above, the plaintiff has failed to establish that it had an interest in the subject property at the time the appeal was taken, and that it has sustained that interest throughout the course of this appeal. Absent this proof, the plaintiff has failed to establish aggrievement, and the court, therefore, lacks subject matter jurisdiction. For this reason, the appeal must be dismissed.
Accordingly, the appeal is denied.