R & R Pool & Home, Inc. v. Zoning Bd. of Appeals of the Town of Ridgefield

• Decision Date: 19 November 1996
• Docket Number: No. 15050,15050
• Citation: 684 A.2d 1207,43 Conn.App. 563
• Court: Connecticut Court of Appeals
• Parties: R & R POOL & HOME, INC., et al. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD et al.

Page 1207

684 A.2d 1207

43 Conn.App. 563

R & R POOL & HOME, INC., et al. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD et al.

No. 15050.

Appellate Court of Connecticut.

Argued September 19, 1996.

Decided Nov. 19, 1996.

Raymond F. Ross, Westport, for appellants (plaintiffs).

J. Allen Kerr, Jr., Ridgefield, for appellee (named defendant).

Thomas W. Beecher, Danbury, for appellee (defendant Oswald Inglese).

Before FOTI, SPEAR and FRANCIS X. HENNESSY, JJ.

FOTI, Judge.

This appeal arises out of the denial of an application for site plan approval made to the zoning authorities of the town of Ridgefield. The plaintiffs, R & R Pool & Home, Inc. (R & R), and Neil Farans, Alvin G. Farans and Diane Green, as individuals and as principals of the involved partnerships (partnership), ¹ appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the town of Ridgefield (board). The board's decision affirmed the denial of a site plan application by the defendant Oswald Inglese, planning director of the town of Ridgefield. On appeal, the plaintiffs claim that the trial court improperly concluded that (1) R & R lacked standing because it did not sign the application for site plan approval, (2) the partnership failed to maintain its status as an aggrieved party during the pendency of this action because the purchase money first mortgage that it received was not substantial and legitimate, and (3) the published legal notice of the decision and related documents in a previous appeal and the attachments to the amended complaint were not admissible. We reverse the judgment of the trial court in part and affirm it in part.

I

The record reveals the following relevant facts. The property that is the subject of this appeal is located at 975 Ethan Allen Highway in the town of Ridgefield. The property is situated in a B-2 zone in which retail sales are not permitted. A variance, however, had been granted to a previous lessee in 1990 to allow the use of the property for retail and wholesale sales. ² The extent of sales allowed by the variance is at issue in the merits of the appeal. The scope of the action for the variance, as set out in a letter from the board, stated that the variance was limited to the wholesale and retail sales of "oriental rugs, fine furniture and art." The plaintiffs argue that the published legal notice did not place such restrictions on the variance.

On July 2, 1993, Attorney Melvin J. Silverman filed an application for site plan approval of the property for a "[w]arehouse, office and retail sale of fine outdoor furniture." ³ The application lists the individuals involved in the partnerships as the owners ⁴ and R & R as the name of the business to be conducted on the property. The planning director denied the application. ⁵ On October 7, 1993, the partnership and R & R appealed that decision to the board. ⁶ The board sustained the decision of the planning director.

On February 24, 1994, the plaintiffs challenged the board's decision by filing an appeal with the trial court. On July 29, 1994, the plaintiffs filed an amended complaint alleging that the decision of the board was arbitrary, illegal and an abuse of discretion, and that the board should be directed to sustain their appeal of the planning director's denial of their site plan application.

The trial court determined that R & R lacked standing to appeal the decision because it was not the applicant for the site plan approval. It further found that, although the partnership owned the property at the time of the proceeding before the zoning authorities, it sold the property to R & R for $315,000 before the appeal process was completed in the trial court. The trial court ruled that, despite retaining a $1500 purchase money mortgage, the partnership failed to maintain its status as an aggrieved party during the pendency of the action, deeming its interest in the property, after it sold the property to R & R, as not "substantial and legitimate." The trial court, therefore, dismissed the appeal as to all plaintiffs without reaching the merits of the board's decision.

The plaintiffs filed a petition for certification to appeal to this court, which was granted on July 20, 1995. They filed this appeal on July 31, 1995.

II

The first two issues on appeal relate to whether R & R has standing to appeal and whether the partnership is aggrieved. These determinations were questions of fact for the trial court. Fuller v. Planning & Zoning Commission, 21 Conn.App. 340, 343, 573 A.2d 1222 (1990). "The scope of review of a trial court's factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings.... Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts." (Citations omitted; internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 374, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

A

The trial court found that R & R lacked standing to appeal because it was not the applicant on the application for site plan approval. ⁷ The trial court determined that R & R was only a prospective lessee at the time of the application to the planning director and, therefore, cannot maintain the appeal.

The plaintiffs argue that the defendants waived the issue of standing by not raising it as a special defense before the trial court. In the alternative, the plaintiffs contend that R & R has standing based on a series of contracts that resulted in R & R's purchase of the property.

Pursuant to General Statutes § 8-8(b), the plaintiffs must establish that they are aggrieved by the decision of a zoning authority in order to have standing to appeal to the Superior Court. "The question of aggrievement is essentially one of standing." ⁸ Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). The issue of standing invokes the trial court's subject matter jurisdiction. D.S. Associates v. Planning & Zoning Commission, 27 Conn.App. 508, 511, 607 A.2d 455 (1992). The issue cannot be waived. "Proof of aggrievement is essential to a trial court's jurisdiction of a zoning appeal." Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 739 n. 12, 626 A.2d 705 (1993); see also Planning & Zoning Commission v. Gaal, 9 Conn.App. 538, 542-43, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987); but see Fuller v. Planning & Zoning Commission, 21 Conn.App. 340, 346, 573 A.2d 1222 (1990). ⁹

The facts of this case, as found by the trial court, demonstrate that R & R had a sufficient interest in the property at the time of the appeal and maintained it throughout the appeal process. On July 22, 1993, a commercial lease was executed by the partnership, as landlord, and R & R, as tenant, for nine months from September 1, 1993, through May 31, 1994. Another contract was signed on April 15, 1994, to sell the property to R & R. On September 2, 1994, the partnership executed and delivered a warranty deed conveying title to R & R for a purchase price of $315,000. ¹⁰ The plaintiffs' appeal was filed in the Superior Court on February 24, 1994. R & R was therefore a tenant at the time of the filing of this appeal, and soon thereafter became a prospective purchaser through the April 15, 1994 contract of sale.

Our Supreme Court has recognized that certain lessees of property may apply for a permit or variance. See Richards v. Planning & Zoning Commission, 170 Conn. 318, 322, 365 A.2d 1130 (1976). Moreover, the court has determined that prospective business operators may be aggrieved. See DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn.App. at 377, 588 A.2d 244.

In addition, R & R was referred to as an interested party throughout the proceedings before the planning director and the board. The application for site plan approval requested permission for R & R to use the premises for the sale of outdoor furniture. Correspondence between Silverman and the planning director referred to R & R. Legal notice of this decision referred to R & R. The board affirmed the planning director's denial, referring to R & R in its decision. The board also referred to R & R as the applicant for the site plan approval throughout the proceedings and in its decision.

"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." (Internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn.App. at 373-74, 588 A.2d 244. "The key ... is that [the plaintiffs] have much more than an abstract interest in the property or the issue; they are all injured by the denial of their application and this is the interest the aggrievement and standing concepts are intended to protect." T. Tondro, Connecticut Land Use Regulation (2d Ed.1992) § 8.B.2a, p. 541.

The record clearly demonstrates that R & R was a lessee and had contracted to purchase the property during the appeal to the trial court and that it was an interested party in the proceedings before the zoning authorities. R & R, therefore, did not lack standing to bring this appeal, and the trial court improperly dismissed it as to R & R.

B

The trial court determined that the $1500 purchase money mortgage the partnership retained in the property was not a sufficiently significant interest so as to support aggrievement. ¹¹ The plaintiffs argue that the amount of the mortgage is irrelevant as to the issue of aggrievement.

"The fundamental test for determining [classical] aggrievement...