Zoning Bd. of Appeals of Town of Wallingford v. Planning and Zoning Com'n of Town of Wallingford

• Decision Date: 07 April 1992
• Docket Number: No. 9738,9738
• Citation: 27 Conn.App. 297,605 A.2d 885
• Court: Connecticut Court of Appeals
• Parties: ZONING BOARD OF APPEALS OF the TOWN OF WALLINGFORD et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WALLINGFORD.

Page 885

605 A.2d 885

27 Conn.App. 297

ZONING BOARD OF

APPEALS OF the TOWN OF

WALLINGFORD et al. v.PLANNING AND ZONING COMMISSION OF the TOWN OF WALLINGFORD.

No. 9738.

Appellate Court of Connecticut.

Argued Dec. 11, 1991.

Decided April 7, 1992.

Priscilla C. Mulvaney, with whom was John K. Knott, Jr., Cheshire, for appellant(named defendant).

Vincent T. McManus, Jr., Wallingford, for appellees(plaintiffs).

Before DALY, LAVERY and LANDAU, JJ.

LANDAU, Judge.

The named defendant, ¹ the Wallingford planning and zoning commission (commission), appeals from the judgment of the trial court sustaining the appeal of, inter alios, the named plaintiff, the Wallingford zoning board of appeals (board), and declaring invalid and unlawful an amendment to § 9.1.H.2 of the town of Wallingford Zoning Regulations.On appeal to this court, the commission claims that (1) the board was without standing to challenge the amendment because it was not an aggrieved party, (2)the trial court ignored relevant precedent in concluding that the amendment improperly eliminated the authority of the board to grant use variances, and (3)the trial court improperly substituted its judgment for that of the commission.We affirm the judgment of the trial court.

The following facts are undisputed.On September 11, 1989, the commission, pursuant to General Statutes § 8-6(3), ²amended§ 9.1.H.2 of the Wallingford Zoning Regulations to restrict the board's power to grant use variances within the town.The board appealed that decision to the Superior Court, pursuant to General Statutes § 8-8.³On March 12, 1990, the commission further amended the regulation at issue, thereby rendering the appeal moot.⁴The board then appealed to the Superior Court from the adoption of the second amendment.

The trial court found that the effect of the amendment was to preclude the board from granting use variances in specific zones unless the failure to grant the variance would amount to an unconstitutional taking of property without just compensation.The trial court further found that (1) the board had standing to take the appeal because it was statutorily aggrieved and aggrieved in a public sense and (2)the amendment was a wholesale destruction of the board's right to grant use variances.The trial court concluded that, in enacting the amendment, the commission acted beyond its power and, thus, it sustained the board's appeal and declared the amendment to be invalid and unlawful.

I

The commission first claims that the board lacked standing to challenge the amendment to § 9.1.H.2 of the regulations because it was not aggrieved.We agree with the trial court's conclusion, but for a different reason.In its memorandum of decision, the trial court adopted the memorandum of decision in Board of Zoning Appeals v. Planning & Zoning Commission, Superior Court in the judicial district of New Haven, docket no. 195250, 1982 WL 30356(January 29, 1982), in which the court, Joseph W. Bogdanski, state trial referee, concluded that the plaintiff had been both statutorily aggrieved and aggrieved in a public sense because it was the proper party to protect the public interest.We conclude that the board in this case was classically aggrieved.

The issue of standing implicates this court's subject matter jurisdiction.Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787(1984)."The 'fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the]court and not on the issues he wishes to have adjudicated.'Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947[1968]."(Emphasis added.)Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497(1973).We acknowledge that a justiciable controversy exists in this case, but address the question of whether the plaintiff suffered the requisite aggrievement.

The jurisdictional requirement of aggrievement serves both practical and functional purposes in assuring that only those parties with genuine and legitimate interests are afforded an opportunity to appeal.Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967(1980).Aggrievement falls within two broad categories, classical and statutory.The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation.A party has been classically aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision.Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601(1984);Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975(1980);Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252(1979);seeMystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491-93, 400 A.2d 726(1978).Statutory aggrievement exists by legislative fiat, which grants appellants standing by virtue of a particular legislation, rather than by judicial analysis of the particular facts of the case.Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634(1985);Pierce v. Zoning Board of Appeals, 7 Conn.App. 632, 635-36, 509 A.2d 1085(1986);seeBuchholz's Appeal from Probate, 9 Conn.App. 413, 415, 519 A.2d 615(1987).

The burden of demonstrating aggrievement rests with the plaintiff.Hickey v. New London, 153 Conn. 35, 37, 213 A.2d 308(1965).The question of aggrievement is one of fact to be determined by the trial court.Glendenning v. Conservation Commission, 12 Conn.App. 47, 50, 529 A.2d 727, cert. denied, 205 Conn. 802, 531 A.2d 936(1987).We will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts.Mystic Marinelife Aquarium, Inc. v. Gill, supra.

In this case, statutory aggrievement is conferred on "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."General Statutes § 8-8(a)(1).Thus, pursuant to § 8-8(a)(1), a person may derive standing to appeal based solely on his status as an abutting landowner or as a landowner within one hundred feet of the subject property.Nick v. Planning & Zoning Commission, 6 Conn.App. 110, 112, 503[27 Conn.App. 302] A.2d 620 (1986).The statute requires only that there be land affected by the decision of the zoning authority, and that the party seeking to appeal owns property abutting that land.Id., at 113, 503 A.2d 620.

Here, there is no particular piece of property affected by the decision nor does the plaintiff own any property that abuts or is within a radius of one hundred feet of any portion of the land involved.Thus, the plaintiff cannot rely on General Statutes § 8-8(a)(1) to claim aggrievement.Moreover, it is irrelevant that one member of the board owns land in a statutory zone of aggrievement, because it is the board as a separate entity that is claiming aggrievement, not the members of the board in their individual capacity.SeeMunhall v. Inlands Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566(1992).Nick v. Planning & Zoning Commission, supra, clearly states that the party seeking to appeal must own the property abutting the land.The party seeking to appeal here is the board.The board owns no land, and thus does not fall within the scope of § 8-8(a)(1).We conclude that the board was not statutorily aggrieved.

Because aggrievement includes persons who are not aggrieved by virtue of their status as abutting landowners or landowners within one hundred feet;Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393(1972); the persons interested in the subject matter of the board's complaint are not limited to those who are statutorily aggrieved.Pierce v. Zoning Board of Appeals, supra, 7 Conn.App. at 636-37, 509 A.2d 1085.Those individuals who have an interest in the subject matter and have been classically aggrieved still have standing to challenge the amendment.

The board has been classically aggrieved.The board has a specific, personal and legal interest in the subject matter of the commission's amendment--the right to grant use variances within the town.Moreover, this specific, personal and legal interest was specially and injuriously affected by the decision.SeeHall v. Planning Commission, supra;Walls v. Planning & Zoning Commission, supra.General Statutes § 8-6(3) confers on the board the power and duty to "determine and vary the application of the zoning bylaws" and confers on the commission the right to "specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed."General Statutes § 8-6"grants broad powers to the zoning board of appeals and limits those powers only when the zoning commission passes a regulation explicitly limiting the issuance of variances."(Emphasis added.)Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 634-35, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365(1991).The commission has not been vested with either the authority wholly to eliminate the board or the authority to change the standard on which the board may grant use variances.

As a result of the commission's amendment, the board was wholly deprived of its statutorily guaranteed right to grant use variances where a literal enforcement of the regulations would result in exceptional difficulty or unusual hardship.SeeGeneral Statutes § 8-6(3).Under the terms of the amendment, the board would be authorized to grant requested use variances only where failure to do so would "constitute an unconstitutional taking of the property without compensation as such taking as...