Caltabiano v. Planning and Zoning Com'n of Town of Salem, 13604

• Decision Date: 27 June 1989
• Docket Number: No. 13604,13604
• Citation: 211 Conn. 662,560 A.2d 975
• Parties: John CALTABIANO et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF SALEM et al.
• Court: Connecticut Supreme Court

Page 975

560 A.2d 975

211 Conn. 662

John CALTABIANO et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF SALEM et al.

No. 13604.

Supreme Court of Connecticut.

Argued May 3, 1989.

Decided June 27, 1989.

Laurence V. Parnoff, with whom were Alfred J. Oronato and, on the brief, Mary Ann Barile, for appellants (plaintiffs).

Thomas P. Byrne, for appellee (named defendant).

Thomas J. Londregan, with whom, on the brief, was Peter M. O'Connor, for appellee (defendant Roger L. Phillips).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

HULL, Associate Justice.

This case involves the narrow issue of whether the term "land involved" in General Statutes § 8-8(a), ¹ which establishes statutory aggrievement to appeal the decision of a zoning agency to the Superior Court, refers to the overall parcel of land owned by the applicant before that agency or the particular piece of that land that was the subject of the agency decision. We conclude that the "land involved" in such a decision concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency. Accordingly, we find error in the trial court's conclusion to the contrary.

On September 14, 1987, the defendant, Roger L. Phillips, filed an application with the defendant Salem planning and zoning commission (commission) ² for a special exception to allow for excavation on Phillips' 110 acre piece of land located on Witch Meadow Road in Salem. On November 17, 1987, the commission approved the application covering a 3.8 acre parcel located deep within the 110 acre parcel. The commission granted an "excavation" permit to excavate down to bedrock. The plaintiffs appealed that decision to the Superior Court claiming that "[t]he Plaintiffs John Caltabiano and Debra Cadwell are owners of property which abuts within 500 feet of the Phillips' parcel and [are] aggrieved by such decision of said Board." Count one alleged certain procedural irregularities in the granting of the application. Count two claimed that the authorized excavation would result in the removal of substances known as pyrites and pyrite ore and cause environmental and health hazards in the areas surrounding the excavation site.

The trial court found that the chemical makeup of the bedrock was the concern of those at the public hearing on the application and of the plaintiffs in the appeal. As a result of this concern the commission did not grant an unrestricted special exception to level the entire 3.8 acre parcel by excavation as requested, but instead conditioned the special exception to the soil above the bedrock.

The court construed the allegations of paragraph two of the complaint as claiming both statutory aggrievement under General Statutes § 8-8(a) and classical aggrievement. The court found that the property of Caltabiano abutted the 110 acre parcel of Phillips, and that the property of Cadwell was "across the street from the Phillips property." We treat this latter finding, as have the parties in this appeal, as an implicit finding that Cadwell's property was "within a radius of one hundred feet" of Phillips' property. The court then stated: "The plaintiff Debra Cadwell did introduce evidence of some activity directly across the street from her property in the nature of a driveway. The plaintiff Cadwell has not established nor does the Court find that such activity is upon the 'land involved in (the) decision of said Board.' The 3.8 acres of land, the location of the permitted excavation, is removed over 1,000 feet from the land of ... John Caltabiano and [that of] Debra Cadwell. Neither plaintiff is statutorily aggrieved." The court also concluded that neither plaintiff had established classical aggrievement and therefore dismissed the plaintiffs' appeal.

The plaintiffs claim that the court erred in: (1) finding, in contravention of § 8-8(a), that an abutting landowner is not statutorily aggrieved; (2) failing to find classical aggrievement when the commission's approval contained restrictions that must be violated; (3) amending the record in contravention of both § 8-8(e) and the rules of evidence; and (4) failing to find that classical aggrievement is established by a landowner upon evidence that action was taken by the zoning authority without necessary, proper and adequate public notice. At oral argument the plaintiffs abandoned any claim of error in the court's failure to find classical aggrievement. Further, in view of our disposition of the case we do not consider the plaintiffs' third claim of error.

We turn now to the question of statutory construction that is dispositive of this case. We repeat the exact wording of § 8-8(a) that is involved in this case. "[A]ny person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board" may appeal the decision to the Superior Court. For our analysis we make no distinction between those who abut or are within 100 feet of the land involved. The interpretation of this requirement is a matter of first impression. Counsel has not cited any case or treatise concerning the matter nor has our research uncovered such authority.

We review the trial court's construction of § 8-8(a) "in light of well established principles that require us to ascertain and give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A Sutherland, Statutory Construction (4th Ed.1984) § 45.05. When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, supra, [at] 673 ; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, [at] 673 ; DeFonce Construction Corporation v. State, 198 Conn. 185, 187 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985); State v. Delafose, supra, [at] 522 ; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980)." Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). We note also that "[a] statute should not be interpreted in any way to thwart its purpose"; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975); and that "[i]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rational result...." Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). We observe, finally, that "[t]his court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results." State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985), and cases cited therein.

None of the parties to this case presented any analytical reasons either in their briefs or oral argument to sustain their interpretation of the statute. We are thus faced with a clear-cut issue devoid of other authority or strong arguments tending to favor one position or the other. We start our analysis, as always, with the statutory words themselves. The phrase "any portion of the land involved in any decision of said board" may appear on the surface to be very simple to interpret. The core of the issue, however, is an exceptionally slippery concept. The "land involved in any decision" may just as reasonably be construed to mean the larger piece of land, of which the affected piece is a part, or to mean the piece carved out of the larger piece, upon which the requested activity is to occur. This ambiguity in the statute impels us to look at the intent of the legislature by inquiring into the legislative history and circumstances surrounding the enactment of the statute and the purpose the statute is to serve.

The right of an abutter or any person owning land that is within a radius of 100 feet of any portion of the land involved in a decision of the zoning agency to appeal was provided by Public Acts 1967, No. 712, and Public Acts 1977, No. 77-470, respectively. The legislative history of each of these statutory changes sheds no light on our quest. We therefore look to the effect of the changes in and of themselves to indicate legislative intent. Both forms of statutory aggrievement reveal a significant liberalization of the law of aggrievement concerning those who can appeal to court from a decision of a zoning agency. Before the addition of these statutory appellate rights, a person appealing from such a decision had, then as now, an arduous burden to allege and prove so-called classical aggrievement. In order to prove classical aggrievement appellants from a zoning decision "are required to establish ... that they had 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 members of the community and that they were specially and injuriously affected in their property or other legal rights. Tucker v. Zoning Board of Appeals, 151 Conn. 510, 514, 199 A.2d 685 [1964]; Tyler v. Board of...