Opinion
No. CV 09-4036815S
July 21, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
In this case the self-represented plaintiff has brought an appeal from the defendant Board of Zoning Appeal's granting variances to build certain structures on the property of neighbors at 33 Roosevelt Street. The appeal states the plaintiff, Edward Mucha is aggrieved by the decision of the board and owns land within 100 feet of the land involved in the decision.
Pursuant to Practice Book § 10-30 the defendant Board has filed a motion to dismiss the appeal arguing that an examination of the Hamden Land Records indicates Mr. Mucha is not the owner of the abutting property. A copy of the deed transferring the property to Mr. Mucha's wife, Debra Mucha, is attached to the motion to dismiss. It is thus argued that Mr. Mucha had no standing to bring this appeal and it must be dismissed because the court has no jurisdiction to hear the appeal.
The court will try to discuss the law in what it considers to be the unfortunate circumstances presented by this case. In Walkinshaw v. O'Brien, 130 Conn. 122, 138 (1943), the court observed that as to appeals from municipal boards and thus zoning boards of appeal: ". . . no such procedure as appeal from boards of this nature was in existence in 1818 and jurisdiction over them was no part of that possessed by the Superior Court at that time; they are solely creatures of statute . . ."
The relevant statutory language is set forth in Section 8-8 of the general statutes. Subsection (b) states any person "aggrieved by any decision of a board" such as the defendant board here "may take an appeal." Subsection (a)(1) of the statute describes "aggrieved persons" as follows:
"Aggrieved person" means a person aggrieved by a decision of a board . . . In the case of a decision by (a) . . . zoning board of appeals `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 a decision of the board.
It is not contested that the property owned by Mrs. Mucha abuts the property to which the Board granted a variance or is within 100 feet thereof.
The statute says an "`aggrieved person' includes any person" owning abutting land or land within 100 feet of land involved in a decision of the board. (Emphasis by this court.) The appellate courts have in effect determined that use of the word "includes" refers to a larger universe than abutting property or property within 100 feet of the land affected by the Board's decision from which the appeal lies. Therefore they have created the concept of classical aggrievement. In Edgewood Village v. Housing Authority, 265 Conn. 280, 288 (2003), it is said:
In order for a party to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved . . . 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.
Nothing in the body of the complaint states grounds for "classic aggrievement." As noted Mr. Mucha explicitly relies on his alleged status as owner, or statutory aggrievement to bring the appeal. A motion to dismiss having been filed which alleges a fact, apparently uncontested by Mr. Mucha, that he is not the record owner, FDIC v. Peabody, 239 Conn. 93 (1996), the court is required to go directly to the jurisdictional question. The defendant's position is that having incorrectly relied on statutory aggrievement the court has no subject matter jurisdiction and the appeal must be dismissed.
(2) (a)
Mr. Mucha, however, contests the foregoing position of the defendant and makes several arguments. He notes the language of subsection (p) of § 8-8 which states that "(p) the right of a person to appeal a decision of a board to the Superior Court and the procedure described in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice." But the complaint lies in statutory aggrievement by the plaintiff's own choice. The court cannot, therefore ignore the statute's use of the word "owner" and the legal ambit of that term. If Mr. Mucha could be characterized as an " owner" under the statute he would be "automatically aggrieved" without having to prove aggrievement in the sense of proving classical aggrievement, Point O'Woods Ass'n, Inc. v. ZBA, 178 Conn. 364, 166 (1979), Smith v. Planning Zoning Board, 203 Conn. 317, 321 (1987). Mr. Mucha cites the Smith case in support of his position that he can be considered the "owner" of the abutting property along with his wife. There the plaintiff was found to be an "owner" for § 8-8 purposes. In Smith "the plaintiff's free hold estate is an estate for her own life. Her reserved life interest remains subject to her direction and control as long as she lives" notes the court. The court goes on to note that "the alienable quality of a life estate allowed a life tenant to convey his whole estate to a third person," id. 203 Conn. 323.In Smith the foregoing was the status of the plaintiff with regard to the land when the appeal was filed. The plaintiff here argues that: "There is on file since 1995 a revocable trust with life estate to allow reversion of ownership to heirs of Debra Mucha by previous marriage upon her death or upon the death of Edward Mucha if he survives Debra." But Mr. Mucha's life estate only comes into existence upon the wife's death. He is not the "owner" for statutory purposes; the language of Smith cannot be stretched that far. Other case law supports that view.
Thus Fuller notes that "a mortgagee is not `a person owning land' which abuts the land involved in the agency's decision even though Connecticut is a title jurisdiction of mortgages since the mortgagee does not occupy the property or obtain it until the vesting of title after default by the mortgagor and foreclosure of judgment." Vol. 9A Conn. Practice Series, "Land Use and Practice," § 32:4, page 147. Here the plaintiff lives on the land but title is not vested in him until the death of his wife. Also Fuller notes in the same section at pp. 147-48 that the owner of a leasehold interest on property does not have standing to appeal under the concept of statutory aggrievement," citing 1055 Stamford Associates Limited Partnership v. ZBA, 33 Conn. L.Rptr. 330, 333 (2002). Also see CT Page 15070 Primerica v. Planning Zoning Commission, 211 Conn. 85 (1989), which held under certain circumstances a party with a leasehold interest could be aggrieved and thus have standing but conducted its analysis using a classical aggrievement test, describing the lessee at one point as a "nonowner," id. pp. 92 et seq. The court therefore does not accept the plaintiff's argument insofar as he tries to equate his interest in the land with that of being an owner and thus entitled to statutory and thus automatic aggrievement under § 8-8(a)(1).
(b)
Additionally, in his brief opposing the motion to dismiss, he argues that when the matter was before the board he was never refused information because he was not the record owner. His lawyer argued before the board that he was representing "Mr. and Mrs. Mucha." Both the town attorney and the board "were aware Edward Mucha was not the owner." That did not stop the Zoning Board from discussing the complaint with him prior to the decision or (the board's lawyer) discussing the case over the telephone with Edward Mucha after the appeal was filed."
But the law is clear that "mere status, however, as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review," Bakelaar v. West Haven, 193 Conn. 59, 66 (1984).
And in Hayes v. Beresford, 184 Conn. 558, 562 (1981), the court said, "It is hornbook law that the parties cannot confer subject matter jurisdiction on a court by consent, waiver, silence or agreement," cf PB § 10-33.
The legislature in its wisdom and for its own reasons has the power to and in fact defined the ambit of powers exercised by these local boards and the necessary requirements for appeal to this court. The boards by its actions or those of its agents cannot modify or expand the right of appeal from its decisions.
(c)
The plaintiff also argues that pursuant to Section 10-30 of the Practice Book the court cannot consider the motion to dismiss as it was not filed within thirty days of the defendant's filing of its appearance. But the plaintiff confuses lack of personal jurisdiction with a claim of lack of subject matter jurisdiction. Here lack of subject matter jurisdiction for the Superior Court to hear this appeal is being raised. Section 10-33 of the Practice Book not only states subject matter jurisdiction may not be waived but says that " whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action" (emphasis by this court). Also see Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294 (1987), where the court said "a motion to dismiss for lack of subject matter jurisdiction may be made at any time."
3.
As a result of the foregoing analysis the court concludes that Mr. Mucha has no standing to bring this appeal in light of the complaint he has filed. This would mean the court has no subject matter jurisdiction of the appeal. However, Mr. Mucha has filed a motion to substitute which, if read together with the memorandum attached to it, relies on § 52-109 of the general statutes and requests he be substituted as plaintiff and that his wife Debra Mucha be allowed to proceed as plaintiff. Mr. Mucha cannot be allowed to proceed as plaintiff. This in effect can only be accomplished by, in effect, amending the complaint which the court cannot do — see FDIC v. Peabody, supra. However, substitution of Mrs. Mucha as plaintiff presents a different question.
The court recognizes that if the motion to substitute were properly before the court there would be compelling reason to grant it, see the recent case of DiLieto v. County Obstetrics, 297 Conn. 105, 150 et seq. (2010), which discusses the policy behind and the appropriate application of Section 52-109, also see this court's opinion in Wilson v. Zemba, 49 Conn.Sup. 542 (2004). The DiLieto case cited FDIC v. Retirement Management Group, 31 Conn.App. 80, 84-85 (1993), which said:
General Statutes § 52-109 and [what is now] Practice Book § [9-20] allow a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as plaintiff . . . Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest. In the context of analogous rules of federal civil procedure, it has been observed that [when] the change is made on the plaintiff's side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading. As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added . . . Thus, an amendment substituting a new plaintiff will relate back if the added plaintiff is the real party in interest.
This case also noted that the substitution of the real party in interest as plaintiff would cure the lack of standing of the original plaintiff.
In effect the reasoning of a case like New York Evening Post Co. v. Chaloner, 265 F. 204, 213 (CA 2, 1920), has been adopted which held that: where there is no change in the cause of action and the party substituted bears some relation of interest to the original party.
If substitution of Mrs. Mucha were to be allowed there is no violation of the 15-day rule for appealing a decision by the defendant Board, Section 8-8(b) because the substitution would relate back to the original filing of the appeal.
4.
But the difficult problem for the court is whether a motion to substitute Debra Mucha is properly before the court. As noted the motion itself does not directly request this but the memorandum itself suggests the court take this action to avoid having to grant the motion to dismiss.
As indicated in Horton Knox, in their commentary to P.B. § 9-20 which is identical to § 52-109, the practice book section "cannot be used where there is no jurisdiction as to the original plaintiff," citing Johndrow v. State, 24 Conn.App. 719, 722 n. 1 (1991). One may very well wonder then what is the purpose of § 52-109. The liberal and broad interpretation given the practice book section and the statute would seem to negate such a position. As noted, FDIC v. Retirement Management stated that the substitution of the real party in interest cures lack of standing in the original plaintiff and lack of standing goes to subject matter jurisdiction.
But a problem remains, at least for the court. Mr. Mucha is a pro se party. He filed the motion to substitute and the accompanying memorandum.
As the court said in Collard Roe, P.C. v. Klein, 87 Conn.App. 337, 343-44 n. 3 "A pro se party may not appear on behalf of another pro se party . . . To do so would be to engage in the unauthorized practice of law. See General Statutes § 51-88"; also see Ackerly Brown, LLC v. Smithies, 109 Conn.App. 584, 585, n. 1 (2008). This observation would be even more applicable to a situation where the pro se litigant, whom the court ruled has no jurisdictional standing, purports to represent the interest of someone, albeit his wife, who is not in fact a party. A reading of the statute and P.B. § 2-44A clearly indicates, at least to the court, that in advancing the motion Mr. Mucha sought to represent Debra Mucha's interest in advancing the appeal and this constitutes the unauthorized practice of law.
As the court said in State v. Brown, 256 Conn. 291, 303 (2001), quoting from another case: "Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law," see State v. Vlasak, 52 Conn.App. 310, 315 (2000), cf. State v. Kung, 52 Conn.App. 121, (1999), Cerosimo v. Cerosimo, 188 Conn. 385, 394 (1982), Oakland Heights Mobile Park v. Simon, 40 Conn.App. 30, 33 n. 1 (1995); Shockley v. Okeke, 92 Conn.App. 76, 85, n. 9 (2005).
In DiLieto v. County Obstetrics the motion to substitute was made not only by the party who did not in fact have standing but also by the party who had standing and wished to be substituted as plaintiff. In FDIC v. Retirement Management, a party made the motion to substitute, FDIC, which in fact did not have standing as plaintiff but the court noted no one objected to its status as plaintiff. 31 Conn.App. at page 82. In Wilson v. Zemba the parent filed the motion to substitute for the minor child which gave him an independent status to act in the child's interest.
Perhaps Practice Book § 9-20 would have given Mrs. Mucha the right to intervene if she wished; she merely filed an appearance. The court will accept the fact that she would not have any objection to being substituted as plaintiff. She appeared with her husband at every court hearing.
However, this does not belie the fact that Mr. Mucha, vis-a-vis his wife is practicing law in seeking to have her substituted as plaintiff. Therefore the court is compelled to grant the motion to dismiss and cannot rely on the motion to substitute as a way to avoid that result.