MORDECHAI ABEL ET AL. v. NEW CANAAN PLANNING ZONING COMMISSION ET AL.

2008 Ct. Sup. 4129, 47 CLR 297
No. FST CV 08 4014331SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
February 24, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS #106
PAVIA, J.

Factual History
The plaintiffs, Mordechai and Savyona Abel, Daniel and Karen Cooper, and Sanjit and Mary Shah, commenced this administrative appeal by service of process on the defendants, New Canaan Planning Zoning Commission, Grace Property Holdings, LLC (Grace), and Pacific Farm, LLC (Pacific), on June 4, 2008. The plaintiffs bring this appeal pursuant to General Statutes § 8-8 challenging the commission’s approval of an application for an amendment to a special permit filed by Grace and Pacific.

Pacific owned an approximately seventy-four acre tract of land in New Canaan known as Windsome Farm. The plaintiffs each own property that abuts the undivided Windsome Farm property. On July 30, 2007, Grace and Pacific filed an application with the commission seeking approval to resubdivide Windsome Farm into two parcels; a twenty-six-acre parcel (Parcel A) and a forty-eight-acre parcel (Parcel B). Thereafter, Pacific entered into a contract to convey Parcel B to Grace. Also on July 30, 2007, Grace submitted an application to the commission seeking a special permit to construct and operate a church complex on Parcel B. On November 27, 2007, the commission approved both applications. The plaintiffs in this matter appealed the commission’s approval of the applications for resubdivision and for a special permit. That appeal is currently pending under Docket No. CV 084013132 (hereinafter Abel I). In addition, Grace appealed the commission’s approval of the special permit application on the grounds that the permit should have allowed Grace to construct a permanent, rather than temporary, sanctuary. That appeal is pending under Docket No. CV 07 4013095.

On May 5, 2008, Grace and Pacific applied to the commission for an amendment to the special permit granted on November 27, 2007. The application, in essence, sought to amend the original special permit to allow for the construction of a permanent sanctuary instead of the CT Page 4130 originally approved temporary sanctuary. The proposed amendment also allowed for an increase in the sanctuary’s capacity provided that additional traffic studies were conducted and submitted for the commission’s review and approval. The commission approved the application for the amendment on May 20, 2008, published notice of the approval on May 29, 2008, and filed its certificate of decision in the land records on June 17, 2008.

The plaintiffs each own property that abuts the undivided Windsome Farm. None of the plaintiffs’ properties, however, abut or are within 100 feet of Parcel B. The Abels’ property is located in New Canaan. The properties owned by the Coopers and the Shahs are located in New York.

The plaintiffs now appeal the commission’s approval of the application for amendment to the special permit. The substance of the plaintiffs’ appeal is not at issue here. Grace and Pacific, jointly, and the commission individually, have filed separate motions to dismiss the plaintiffs’ appeal for lack of subject matter jurisdiction asserting that the plaintiffs do not have standing to challenge the decision of the commission. More specifically, the defendants initially argue that the plaintiffs are neither statutorily nor classically aggrieved, and additionally claim that because General Statutes § 8-8 does not have extraterritorial application, it does not confer standing upon the plaintiffs who do not own property in Connecticut.

Legal Discussion
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . .” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks CT Page 4131 omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430
n. 12, 674 A.2d 638 (2007). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

The defendants initially argue that the court lacks subject matter jurisdiction. They assert that as Parcel B rests outside the 100-foot radius requirement of § 8-8, the plaintiffs have failed to establish statutory aggrievement. The plaintiffs argue that for purposes of determining aggrievement, the “land involved in the decision of the board” must encompass the entire seventy-four-acre tract as the commission’s decision to grant the amendment to the special permit relates back to the initial granting of the special permit for the entire tract itself.

“[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.” (Internal quotation marks omitted.) Id., 400.

General Statutes § 8-8(a)(1) provides, in relevant part: “[An] `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 the decision of the board.” It is undisputed that each of the plaintiffs own property in excess of the statutory 100-foot radius of Parcel B. All plaintiffs, however, possess property within 100 feet of the undivided Windsome Farm lot. Thus, the question before this court is whether the phrase “land involved in the decision of the board” means the discrete parcel subject to the special permit amendment or the property in its entirety.

In Abel I, in which the same plaintiffs appeal the commission’s approval of the applications for resubdivision and for a special permit, the defendants raised the issue of statutory aggrievement as a ground for its motion to dismiss. See Abel v. Planning Zoning Commission, CT Page 4132 Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 4013132 (September 5, 2008, Karazin, Jr., J.) (46 Conn. L. Rptr. 376, 377). In support of their motion in Abel I, the defendants presented arguments similar to those they have made in support of the present motion. Specifically, the defendants asserted that because the seventy-four acre tract had been approved for subdivision, the individual parcels should be separately analyzed for purposes of determining aggrievement. Id. The court, however, rejected the defendants’ arguments ruling that the final legal division of land does not occur until the period for appeal expires or any appeal is resolved in favor of the applicant. Id., 379-80.

Thereafter, the defendants petitioned the commission for amendment to the special permit seeking to enhance the authorized construction of a temporary sanctuary to that of a permanent one. This amendment was granted and is the subject of the present appeal. The defendants now motion this court to dismiss the plaintiffs’ appeal regarding the amendment to the special permit, again asserting that the plaintiffs lack standing as they are neither statutorily nor classically aggrieved parties within the meaning of § 8-8. The defendants argue that because the amendment to the special permit only referenced Parcel B, as distinguished from Abel I which described the entire Windsome property, and because the plaintiffs’ properties are all in excess of 100 feet from this distinct lot, they are barred from asserting aggrievement.

The Supreme Court was recently asked to decide a similar issue in Gerlt v. Planning Zoning Commission, 290 Conn. 313 (2009). The Gerlt Court ruled that as owners of land within 100 feet of an entire property involved in a proposed development, the plaintiffs were statutorily aggrieved by the commission’s decision, notwithstanding the fact that the plaintiff’s land was not within 100 feet of the specific portion of that property which was the subject of the site plan application. Id., 321-22. The court clarified that the `land involved’ language of § 8-8(a) refers to the entire property involved in the commission’s decision, even when only a portion of the property is the subject of the site plan application. Id.

Similarly in Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989) the Supreme court reviewed the validity of the plaintiffs’ claim of statutory aggrievement where the disputed tract of property was located deep within a 110-acre plot of land resulting in a claim that the plaintiff was outside the 100-foot radius from the implicated property. Id., 664. As in this case, the plaintiffs i Caltabiano owned land within a radius of 100 feet of the entire parcel, but over 1,000 feet from the land subject to the appeal. Id., 664-65. The CT Page 4133 Supreme Court concluded that the term “land involved” as delineated in §8-8(a) “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.” Id., 663; see Hochberg v. Zoning Commission, 19 Conn.App. 357, 360, 561 A.2d 984 (1989) (statutory aggrievement exists where plaintiffs own property within 100 feet of some portion of the land involved in the commission’s decision). The Caltabiano court, looking to the legislative intent of § 8-8, noted that liberalization of the law of aggrievement in accordance with this section would not unduly expand the class of statutorily aggrieved plaintiffs. Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 668-69.

The defendants nonetheless argue that Fyber Properties Killingworth Limited Partnership v. Shanoff, 228 Conn. 476, 636 A.2d 834 (1994), which was not presented to the court in support of the motion to dismiss filed in Abel I, controls this issue. This court disagrees.

In Fyber Properties Killingworth Limited Partnership v. Shanoff, supra, 228 Conn. 476-77, the issue presented related to municipal taxation of property. In Fyber, the planning and zoning commission approved the plaintiff’s application for the subdivision of his property and no appeals were taken. Id., 478. The annual tax assessment date fell between the date of approval and the date the approved subdivision map was filed Id., 478-79. The Supreme Court concluded that, for purposes of municipal taxation, the date of approval was the operative date when determining whether to assess the property as individual subdivision lots or as undivided land. Id., 481. The plainly distinguishable factual and legal context severely diminishes the applicability of this authority to the present situation in which aggrievement is at issue. In Fyber Properties, the Supreme Court explicitly cautioned that “[i]n reaching this decision, we confine ourselves to the facts of this case.” Id. Moreover, the Supreme Court expressly stated that it declined to “decide the date upon which a property becomes taxable as a subdivision if the approval has been appealed . . .” (Emphasis added.) Id. In this case, there is a pending appeal of the approval of the resubdivision application. Accordingly, Fyber Properties is not controlling appellate authority.

The defendants assert that as the amendment to the special permit does not reference Parcel A, as had the original permit, only Parcel B should be considered for aggrievement purposes. The defendants, however, have failed to provide the court with any relevant appellate authority that would mandate a finding that the Windsome Farm property was legally divided at the time of the commission’s approval of either the special permit application or the amendment to the special permit. A reading of General Statutes § 8-25(a) would suggest otherwise. Section 8-25(a) CT Page 4134 provides in relevant part that “[a]ny plan for subdivision shall, upon approval, . . . be filed or recorded by the applicant in the office of the town clerk not later than ninety days after the expiration of the appeal period under section 8-8, or in the case of an appeal, not later than ninety days after the termination of such appeal by dismissal, withdrawal or judgment in favor of the applicant . . . and any plan not so filed or recorded within the prescribed time shall become null and void . . .” As such, the plan for subdivision can not become final within the meaning of § 8-25 during the pendency of the appeal relating to the special permit.

Accordingly, the land involved in the commission’s decision on the application for the amendment to the special permit was the entire seventy-four acres; the same land involved in the commission’s decision to approve the original application. The plaintiffs own property within 100 feet of this tract and are, therefore, statutorily aggrieved pursuant to § 8-8.[1]

Finally, the defendants contend that even if they would otherwise be statutorily aggrieved, the plaintiffs who own property in New York, the Shahs and the Coopers, are not aggrieved for purposes of this appeal because their property is located outside of Connecticut. The plaintiffs bring the present appeal specifically under § 8-8. As such, the question presented is whether § 8-8 confers extra-territorial jurisdiction to an abutting out of state property owner.

This issue was presented in Prime America v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 85 0076922 (August 27, 1987, Corradino, J.), aff’d sub nom, Primerica v. Planning Zoning Commission, 211 Conn. 85, 558 A.2d 646 (1989), where the court ruled that an out of state abutting landowner could not claim aggrievement under Connecticut law. “[A]s a matter of statutory interpretation, there is a presumption that statutes do not confer rights outside the jurisdiction unless the legislature has clearly expressed contrary intent in the statute.” Id. Here, neither the statute itself, nor its legislative history, suggests the desire to open the courts in such a manner.

Additionally, the identical issue was presented to the court i Abel I. In that case, Judge Karazin followed Prime America v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 85 0076922, and concluded that the New York plaintiffs did not have standing to bring their appeal. Abel v. Planning Zoning Commission, supra, 46 Conn. L. Rptr. 381. The defendants now argue that, pursuant to the principles of issue preclusion, the plaintiffs are bound by the prior CT Page 4135 determination that they lacked standing and by the resulting dismissal.

“[C]ollateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim.” (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). The underlying policy considerations in applying the doctrines of collateral estoppel and res judicata are “(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.” Id., 601.

In Abel I, Judge Karazin addressed the identical issue of standing that is now presented to this court and entered a final judgment of dismissal against the New York plaintiffs. Abel v. Planning Zoning Commission, supra, 46 Conn. L. Rptr. 381. The issue of whether the owners of New York property could bring an appeal pursuant to § 8-8 was actually litigated and necessarily determined adversely to the plaintiffs. Id. While the judgment of dismissal in Abel I may not preclude assertion of a similar jurisdictional claim, it does preclude relitigation of the issues actually litigated and necessarily decided. Dana Investment Corp Bankruptcy Estate v. Robinson Cole, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 02 0515043 (January 2, 2003, Aurigemma, J.).

Accordingly, the plaintiffs, as nonresidents, are not conferred standing pursuant to § 8-8 to bring the present appeal. Furthermore, principles of collateral estoppel warrant a finding precluding the relitigation of this issue. As such, the defendant’s motion to dismiss as to the New York plaintiffs, the Coopers and the Shahs, is granted.

Conclusion
For the foregoing reasons, the Connecticut plaintiffs, owning property within a 100-foot radius of the land involved in the commission’s decision are statutorily aggrieved. As such, the defendant’s motion to dismiss as to the Abels is denied. The New York plaintiffs, however, are not aggrieved by virtue of § 8-8 which fails to confer extra-territorial jurisdiction upon a nonresident. Accordingly, the motion to dismiss is granted as to the New York plaintiffs, the Shahs and the Coopers.

[1] Having found that the plaintiffs are statutorily aggrieved, it is unnecessary for the court to address whether they are classically CT Page 4136 aggrieved.

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