Opinion
No. CV 05 4102262
April 7, 2006
MEMORANDUM OF DECISION RE WHETHER DEEDED RIGHTS TO USE AREAS FOR ACCESS TO LAKE FOR BATHNG ONLY ESTABLISHES AGGRIEVEMENT
On May 31, 2005, the plaintiffs, the Ashwillet Beach Association and its individual members, commenced the present appeal by serving process upon the defendants, the North Stonington zoning board of appeals (board) and WACO, LLC (WACO). In their complaint, the plaintiffs allege that the board acted illegally, arbitrarily and in abuse of the discretion vested in it when it granted WACO's application for a variance.
WACO has filed a motion to dismiss the complaint on the ground that the plaintiffs lack standing to bring the claim because they are not aggrieved. This motion was accompanied by a memorandum of law in support. The plaintiffs have filed a memorandum of law in opposition.
According to General Statutes § 8-8(j): "Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing. The court may, on the record, grant or deny the motion . . ." "[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004).
"Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, supra, 271 Conn. 157. Statutory aggrievement exists pursuant to General Statutes § 8-8(a)(1), which defines "aggrieved person" as including "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." There is a "legislative presumption that a landowner's parcel is sufficiently affected by the . . . zoning action to confer standing without requiring the landowner to prove that he is adversely affected by the decision only when the property is in close proximity to the affected property." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, supra, 160-61.
Classical aggrievement requires that ". . . a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, supra, 271 Conn. 157. "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002).
In their complaint, the plaintiffs allege that they have deeded rights to use the property for which the variance was sought, and these rights will be adversely affected by the decision of the board. WACO argues that the adverse effects to the deeded rights alleged by the plaintiffs are insufficient to demonstrate either statutory or classical aggrievement. The plaintiffs counter that the deeded rights they possess permit a finding of statutory aggrievement based on the distance requirements outlined in § 8-8(a)(1), as well as a finding of classical aggrievement based on the adverse effect to the deeded rights. The plaintiffs claim to have deeded rights to certain property. Upon reviewing the record, however, the court found the evidence unclear as to which area the plaintiffs were claiming would be adversely affected by the board's decision allowing WACO's planned development. Accordingly, an evidentiary hearing was held on this issue on January 3, 2006.
At this evidentiary hearing, the plaintiffs presented the testimony of Ronald Robbins, one of the individual members of the Ashwillet Beach Association. Robbins testified as to the present use of the subject area and the effects of WACO's planned development on the use of this area. The plaintiffs also submitted two photographs of a section of the subject area, which depicts the present building and surrounding area. See Plaintiffs' Exhibits 1 and 2. Additionally, the plaintiffs previously submitted a certified copy of the deed of John and Gail Graves, which plaintiffs' counsel and WACO's counsel have stipulated contains language that is representative of the language of the deeds of the other members of the Ashwillet Beach Association. See Plaintiffs' Exhibit A. WACO presented the testimony of Nathan Weise. Weise testified as to the present use of the subject area, as well as to the extent of WACO's proposed development as approved by the board. WACO also submitted a survey plan showing the proposed development; Defendant's Exhibit 1; and eight photographs depicting the subject area and the present building from a variety of angles. See Defendant's Exhibits 2, 3, 4, 5, 6, 7, 8 and 9.
Counsel made this stipulation at the October 17, 2005, short calendar argument on the present motion to dismiss.
Based on the foregoing evidence, the court makes the following findings of fact relevant to the issue of aggrievement. The plaintiffs have deeded rights to use an area of land for access to Billings Lake in North Stonington.
In pertinent part, the deeds of the members of the Ashwillet Beach Association grant the right "to use the area shown as Lots 12, 13, 14 and 15 . . . The use of said areas to be for the purpose of access to Billings Lake for bathing only." (Emphasis added.) Plaintiffs' Exhibit A. This deeded right is effectively an express easement created by deed and is hereinafter referred to as such. The court also finds that the variance granted by the board allows for the construction of a building on sections of the specific lots to which the members have an easement. Due to the location of the building as permitted by the variance, the plaintiffs will be prevented from accessing a portion of their easement. Specifically, the evidence submitted demonstrates that a building currently within the easement area, and used by the plaintiffs as a changing and/or bathroom facility, will be removed and a new building, exclusively used by WACO, will be constructed. The planned construction by WACO will prevent access by the plaintiffs to the current building, and will occupy an additional area of the easement that is presently open space.
The court notes the plaintiffs' objection regarding the description of their deeded rights as an "easement." This objection is based on the notion that the term "easement" limits the scope of the plaintiffs' rights to use the subject area. The plaintiffs' arguments are based on the intention of the granting party, the reasonable uses of the land, etc. The court finds these arguments are directed at the "character and extent" of the easement, rather than whether the deeded rights are, in fact, an easement. See Stefanoni v. Duncan, 92 Conn.App. 172, 883 A.2d 1271 (2005), cert. granted on other grounds, 276 Conn. 934, 890 A.2d 573, and cert. denied, 276 Conn. 935, 890 A.2d 574 (2006) ("It is well settled that [for a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties.").
The court finds that the plaintiffs' easement demonstrates a specific, personal and legal interest in the subject matter of the decision of the board. See, e.g., Dean v. Norwalk Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193760 (November 4, 2004, Radcliffe, J.) ("easement in favor of the [p]laintiff is sufficient to establish a specific personal interest in the subject matter of the [zoning commission's] decisions."); see also McBurney v. Cirillo, 276 Conn. 782 (2006) (existence of easement found to constitute sufficient legal interest when examining aggrievement to appeal Probate Court decision.) Therefore, the remaining issue before the court is whether the obstruction of the easement in this case is sufficient to show that the legally protected interest has been adversely affected. The court concludes that it does.
In Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981), the plaintiffs sought to quiet title and enjoin an owner of property who attempted to open the beach to public access. The plaintiffs had an easement to this beach that was created by deed. The deed stated, "[t]ogether with the right to use in common with, others, for the purpose of bathing only, the beach located easterly of the Second Piece." Id., 612. The court explained that, "[t]he rule is well established that the owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right." Id., 615. The court emphasized that "[a] beach easement is more than a mere right of access; it involves the more sensitive rights of recreational use, enjoyment and pleasure implied in the reasonable use of the easement." Id., 616.
Although Leabo involved a different cause of action from this zoning appeal, the facts of that case are analogous to the present appeal and the court's description of beach easements in Leabo is equally applicable in this context. A beach easement encompasses sensitive rights, which are considered to be adversely affected if obstructed or disturbed. Id., 615-16. In the present case, the plaintiffs have demonstrated that they will be obstructed from making use of a portion of their beach easement because of WACO's construction of a building that has been permitted by the board. By so demonstrating, the plaintiffs have established that they are classically aggrieved by proving they have a specific, personal, and legal interest in the subject matter of the decision that has been adversely affected.
Since this court finds that the plaintiffs are classically aggrieved, the court need not address the issue of statutory aggrievement.
Accordingly, the court finds that the plaintiffs have standing to bring this appeal and, therefore, the defendant's motion to dismiss is denied.