Handsome, Inc. v. Planning & Zoning Comm'n of Monroe
| Decision Date | 14 July 2015 |
| Docket Number | No. 19262.,19262. |
| Court | Connecticut Supreme Court |
| Parties | 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).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.
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,1 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.
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
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.2 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.
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.
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...
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