Opinion
No. CV 05 4001847 S
May 15, 2006
MEMORANDUM OF DECISION RE SCOPE OF ZONING APPEAL
I. NATURE OF THE PROCEEDINGS
The plaintiff appeals from a decision of the Planning Zoning Commission of the town of Salisbury announced at a special meeting on January 7, 2005, in which the commission (hereinafter PZC) ruled that the application by Dianna Brochendorff to subdivide her commercial real property and sell a portion thereof to Kristin McLallen, was a so-called, "first cut" and was, therefore, not subject to the town's subdivision regulations. In his appeal, the plaintiff, an abutting owner, not only challenges the action of the PZC on January 7, 2005, but seeks to overturn an alleged change of zone granted to Brochendorff on July 21, 2000 in which, according to the plaintiff, the PZC did so without application, without a hearing and without publication thereof. According to the plaintiff, also who was not at the time an owner of the property abutting that of Brochendorff but was a mortgagee, the earlier decision by the PZC illegally changed the zone of a portion of Brochendorff's property from residential to commercial. The plaintiff claims statutory aggrievement relative to the January 7, 2005 decision of the PZC. In addition however, to the plaintiff's request that the court declare that action illegal, arbitrary, and an abuse of discretion, the plaintiff asks the court to declare the action taken by the PZC nearly six years ago, null and void. In addition to that relief, the plaintiff seeks an injunction restraining McLallen from making any additional improvements to that portion of the real property owned by Brochendorff that is now owned by McLallen.
On June 22, 2005, Brochendorff filed an answer and a special defense, claiming that any review by the court of the July 21, 2000 decision by the PZC is barred by General Statutes § 8-8(r). On November 8, 2005, the town filed a return of record. McLallen has also filed an answer. All of the defendants claim that the cited statute bars the court from hearing any evidence relative to the action of PZC on July 21, 2000, and have, therefore, objected to the plaintiff's motion for disclosure and production (#111), dated October 26, 2005, whereby the plaintiff seeks certain documents relative to that action. The defendants also object to the plaintiff's motion to supplement the record (# 114), dated November 16, 2005, whereby the plaintiff seeks unspecified "documents, deeds, maps, regulations, and such other items," as are germane to the plaintiff's appeal.
On December 13, 2005, the court requested briefs from all parties on the issue of whether it was appropriate for the court, in the context of this appeal, to examine the validity of the action by the PZC on July 21, 2000. The answer to that question will then enable the court to define the ultimate issues to be decided and will aid the court in its determination, pursuant to General Statutes § 8-8(k), as to whether to receive evidence outside the record.
The parties have submitted their legal memoranda and replies and the court has reviewed those submissions.
II. FACTUAL BACKGROUND
On July 21, 2000 the defendant, PZC, unanimously approved a motion to "clarify the boundary line for the CG-20 zone for property currently owned by Brochendorff on Route 44, as the boundary line of said property, which will go back 200' in depth into her property, then west, as shown on the survey map which will be part of the permanent record, as per Section 403 of the Salisbury Zoning Regulations." (Return of Record [ROR], Item R-009.) This decision resulted in an increase in the amount of land situated in the commercial zone.
As noted, the plaintiff, an abutting landowner, commenced an appeal challenging a January 7, 2005 decision of the defendant, the Salisbury planning and zoning commission (PZC). The decision granted the individual defendants a "first cut" of a parcel situated in both a residential and a commercial zone, originally owned by Brochendorff and subsequently sold to McLallen. (ROR, Items R-014; R-015; R-016.) This division of the property could occur only if each lot, as divided, met the minimum requirements of the CG-20 commercial zone. (ROR, Item R-016.) Warner's appeal of the 2005 subdivision is based upon his allegation that the 2000 clarification is null and void due to the failure of the PZC to provide any notice of its decision.
"Lots shall not be smaller in size than required by the zoning regulations for the district in which the subdivision is situated." Zoning Regulations of the Town of Salisbury, Subdivision Regulations § 3.2, p. 2.
In 2000, however, Warner did not own the property abutting the land in question. Warner held the first mortgage on the property, which was owned by his mother.
Warner, as his mother's sole heir, received her interest in the property upon her death on March 9, 2004. See Plaintiff's January 27, 2006 Memorandum of Law, p. 1.
The memoranda of law submitted by the parties, address two subject matter jurisdiction issues: first, whether Warner is aggrieved as a mortgagee to contest the July 21, 2000 action of the PZC; and, secondly, whether the time limitation of General Statutes § 8-8(r) bars the court from addressing the PZC's decision.
III. DISCUSSION A. Subject Matter Jurisdiction
General Statutes § 8-8 governs appeals from a zoning board to the Superior Court. A statutory right of appeal may be taken advantage of only by strictly complying with the statutory provisions that create that right. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [O]nce the question of lack of jurisdiction is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
B. Aggrievement
While Warner has pleaded that he is statutorily aggrieved by the 2005 decision; (Appeal, ¶ 17); he has failed to plead aggrievement regarding the 2000 decision. Failure to plead aggrievement is a fatal defect. Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003).
Warner, however, has argued that he is statutorily aggrieved by the July 2000 decision because he held a first mortgage on the property. Accordingly, because Connecticut is a title theory state, Warner argues that, as a mortgagee, he held legal title and is thus statutorily aggrieved. In the alternative, he argues that he is classically aggrieved. The defendants counter that Warner, as a mortgagee, cannot establish classical or statutory aggrievement.
"[P]leading and proof of aggrievement are prerequisites to the 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." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 537-38. "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, 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 . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, CT Page 8762 275 Conn. 383, 391, 880 A.2d 865 (2005).
General Statutes § 8-8(a)(1) provides in relevant part that: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `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."
In order for Warner to establish statutory aggrievement, he must establish ownership of the land abutting or within 100 feet of the property subject to the action of the PZC. See General Statutes § 8-8(a)(1). "Even though Connecticut adheres to the title theory of mortgages, the mortgagee is regarded as mere security and the mortgagor for most purposes is regarded as the sole owner of the land; the mortgagee has title and ownership enough to make the security available, but for substantially all other purposes is not regarded as the owner." Burke v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 92 0300221 (April 19, 1993, Fuller, J.) ( 8 C.S.C.R. 482, 483) ( 9 Conn. L. Rptr. 3). In State v. Stonybrook, Inc., 149 Conn. 492, 496-97, 181 A.2d 601 (1962), for example, the court emphasized that the government, which held the security rights of a mortgagee to certain property had "what is technically termed a legal title." Id., 496. The court determined that the government, "as mortgagee, did not have the equivalent of a legal title in the sense in which the term would be used were the government to be treated as the present owner . . . of the property." Id. The court concluded that the government was neither the legal owner, nor had legal title so as to give it immunity from compliance with a municipal building code. Id. Accordingly, Warner, as a mortgagee, was not an owner of the property, and could not, even if properly pleaded, establish statutory aggrievement.
In the present case Warner has also failed to plead that he is classically aggrieved by the 2000 decision. This, again, constitutes a fatal defect. See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 542-43. He does, however, argue that if he is determined not to be statutorily aggrieved, the court must find him classically aggrieved.
Even if Warner had pleaded classical aggrievement, he would fail the two-part classical aggrievement test which the Appellate Court has endorsed in determining whether a mortgagee is classically aggrieved. See Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753 (2000); RR Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 684 A.2d 1207 (1996).
In RR Pool Home, the Appellate Court held that a mortgagee had a specific, personal and legal interest, but decided that the record did not support a finding that the mortgage interest would be affected by the action of the zoning board of appeals because the zoning board denied a site plan for the mortgaged property. See RR Pool Home, Inc. v. Zoning Board of Appeals, supra, 43 Conn.App. 573. Specifically, the court emphasized that the $1500 purchase money mortgage was not in any danger of being defaulted upon since the property, as affected by the action of the board, sold for $315,000. Id. In Goodridge, the Appellate Court held that a mortgagee did have a specific, personal and legal interest, and further held that such interest was specially and injuriously affected by the actions of the zoning board of appeals. Goodridge v. Zoning Board of Appeals, supra, 58 Conn.App. 767. The mortgagee held a "substantial mortgage" of $60,000 and the decision of the zoning board of appeals eliminated all economic uses of the lot and therefore substantially decreased the value of the lot. Id. Despite the differing outcomes, however, in both Goodridge and RR Pool and Home, the Appellate Court addressed the second prong of the classical aggrievement test by assessing the manner in which the board's action affected the value of the property that was subject to the mortgage. Further, in both cases the zoning agency's actions directly affected the property subject to the mortgage.
It is undisputed that as a mortgagee Warner had a special interest in the property subject to the mortgage. Warner's mortgage interest, however, unlike the mortgagee's interest in Goodridge, could not have been substantially affected by the action of the PZC. Based on the Appellate Court's ruling in Goodridge, Warner must demonstrate that the value of the property subject to the mortgage has been severely diminished to the point where Warner could not recover the amount of the mortgage if the property was foreclosed upon. Adhering to the principle of Connecticut's intermediate theory of title elucidated in Burke, since the mortgagee is not considered the owner of the property, it is axiomatic that mortgagees may only demonstrate injury when they are denied the ability to recover the full amount of the principal remaining on the mortgage through foreclosure.
The court notes that most mortgage arrangements involve two documents: the mortgage and the promissory note. If, in the event of foreclosure, the sale of the security fails to satisfy the debt, the mortgagee may pursue a deficiency judgment against the mortgagor for the balance of the debt based upon the promissory note. See Federal Deposit Ins. Corp. v. Voll, 38 Conn.App. 198, 207, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 358 (1995). Accordingly, a mortgagee is not without recourse if the sale of the security fails to provide the bank with the balance of the principal.
In his reply memorandum of law, Warner discloses that the value of the property as of July 21, 2000 was $150,000, and further, that the principal remaining on the mortgage at that time was $75,000. In addition, the action of the PZC did not involve the property subject to the mortgage as was the case in CT Page 8764 Goodridge. Even though the action of the PZC may have indirectly affected the property subject to the mortgage, it borders on the impossible that the PZC's action would reduce the value of the property, $150,000, to such an extent that Warner would have been unable to collect his mortgage interest, $75,000, in the event of foreclosure.
See Plaintiff's February 10, 2006 Reply Memorandum of Law, pp. 2, 4.
Accordingly, Warner has failed to establish aggrievement.
C. General Statutes § 8-8(r)
The court next decides whether the time limitation contained in General Statutes § 8-8(r) bars Warner from challenging the July 21, 2000 decision. The defendants argue that the language of the statute clearly indicates that it is meant to be interpreted as a statute of limitations governing the timeliness of appeals. All the defendants cite to Hayes Family, L.P. v. Planning and Zoning Commission, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 03 0082635 (March 18, 2005, Scholl, J.) ( 39 Conn. L. Rptr. 12), which, based on the language of the statute, interpreted § 8-8(r) as a statute of limitations. Warner argues that § 8-8(r) does not prohibit a cause of action claiming a complete lack of notice, as such acts are considered void ab initio. In support of this argument he cites to Hallier v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 05 4008492 (January 11, 2006, Devlin, J.) ( 40 Conn. L. Rptr. 581), which indicates that § 8-8(r) only applies to notice defects that do not implicate the jurisdiction of the commission. Further, he argues that deprivation of notice constitutes a violation of due process rights, to which § 8-8(r) does not apply regardless of any time limitation set.
Warner also cites to Taft v. Wheelabrator Putnam, Inc., 55 Conn.App. 359, 367, 742 A.2d 366, vacated, 255 Conn. 916, 763 A.2d 1044 (1999), for the proposition that a decision of a commission is void ab initio due to a lack of notice. As the defendants correctly point out, that decision was vacated by the Supreme Court due to a lack of aggrievement. Taft v. Wheelabrator Putnam, Inc., supra, 255 Conn. 916.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 959 (2006).
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
General Statutes § 8-8(r) states: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action."
The language of the statute reveals that it extends to all failures to comply with laws governing notice. Such an interpretation would be in line with Judge Scholl's decision in Hayes, which interpreted § 8-8(r) as a statute of limitations. Although the Hallier decision concluded differently, the cases cited in Hallier all involved causes of action that occurred prior to the passage of § 8-8(r). These cases stand for the general proposition that "[w]ithout proper notice, zoning authority actions are null and void." Cocivi v. Plan and Zoning Commission, 20 Conn.App. 705, 707, 570 A.2d 226 (1990). To rectify the disagreement, the court will look to extratextual sources.
There is sparse legislative history concerning Public Acts 1999, No. 99-238 ( P.A. 99-238), which introduced § 8-8(r). The judiciary committee, however, did receive written testimony submitted by the Connecticut law revision commission (law commission) which is illuminating. The testimony indicates that Senate Bill No. 1007, An Act Concerning Validating Provisions, and Senate Bill No. 1006, An Act Concerning Validating Acts and Deeds, Valid Except for Certain Irregularities and Omissions, were both recommendations made by the law commission at the bequest of the judiciary committee. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1999 Sess., pp. 456-60. In addressing Senate Bill No. 1007, which ultimately became P.A. 99-238, the law commission stated that: "specific errors that are currently addressed by the periodic validating act, where necessary, should be addressed in advance by provisions of general application. Enactment of Senate Bill 1007 would obviate the need for continued passage of the period act by validating such errors after passage of a period of limitations. That approach ensures that persons holding substantive rights as the result of a defect or omission are afforded ample opportunity to litigate those rights, but that the errors do not create a cloud on title or interests for later generations." (Emphasis in original.) Conn. Joint Standing Committee Hearings, supra, p. 459. Further guidance may be found in the law commission's annual report to the legislature, which, when commenting on the need for § 8-8(r), stated: "The policy concern of the validating act could be addressed by a discrete revision of section 8-8 providing that no action may be brought to contest a decision of such a commission, notwithstanding the commission's failure to give notice, except within two years of the date of the decision." 1998 Twenty-Fourth Annual Report of the Connecticut Law Revision Commission to the General Assembly, March 1999, Appendix F, p. 182.
With Senate Bill No. 1007 eliminating the need for validating acts in the future, the law commission recommended Senate Bill No. 1006 as a final validating act covering existing errors of record. Id. During debate on Senate Bill No. 1006, Representative Robert Farr, frustrated by the senate's inaction on Senate Bill No. 1007, attempted to amend that bill onto Senate Bill No. 1006. In discussing that amendment he stated that "what the law revision commission did was draft a law as I indicated, which essentially takes all of those defects that we have now, that are, that we cure every two years, and says in the future we're going to cure them with the passage of time." 42 H.R. Proc., Pt. 8, 1999 Sess., p. 2628, remarks of Representative Robert Farr.
Senate Bill No. 1006 was enacted as Special Acts 1999, No. 99-7.
Ultimately, the amendment failed because it amended a public act to a special act which was in violation of house precedents. 42 H.R. Proc., supra, pp. 2629-632.
Based on the language of the statute as well as extratextual sources, the court concludes that § 8-8(r) operates as statute of limitations, but will consider Warner's due process argument before determining the applicability of § 8-8(r) to the present matter. "There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose . . . "There is no reason, constitutional or otherwise which prevents the legislature from enacting a statute . . . which starts the limitation . . . from the date of the [injury] complained of." (Citations omitted; internal quotation marks omitted.) Keegan v. Aetna Life and Casualty Ins. Co., 42 Conn.App. 803, 809, cert. denied, 239 Conn. 942, 686 A.2d 120 (1996). "Limitation periods are designed to eliminate stale claims . . . They are by definition arbitrary, and their operation does not discriminate between the just and unjust claim, or the voidable . . . and unavoidable delay . . . They sometimes expire before a claimant has sustained any injury . . . or before he knows that he has sustained an injury . . . If the limitation period is otherwise reasonable, a claimant is not thus deprived of his right to due process . . . The legislative body which enacts the limiting legislation may avoid unfair results by incorporating appropriate tolling provisions. Its failure to do so does not make the limitation unconstitutional." (Citations omitted; internal quotation marks omitted.) Ornstein v. Regan, 604 F.2d 212, 214 (2nd Cir. 1979). While Warner argues that this interpretation will cause the town officials to commit more "scandalous violation[s] of both property rights and the public trust" the court is not willing to adhere to such a cynical notion. The time limitation set by § 8-8(r) is reasonable and is intended by the legislature to provide certainty in property interests. Accordingly, the court finds that Warner's challenge of the July 21, 2000 decision is time barred by § 8-8(r).
The court takes umbrage with Warner's attack upon the integrity of public officials. Many of these individuals perform their duties without pay due to a sense of duty to the community. Planning and zoning commissions are also routinely staffed with professionals who make a living aiding in the often difficult task of deciding in a municipality's future development.
Warner, in his January 27, 2006 memorandum of law, states that he is seeking a declaratory ruling. The defendant interprets that statement as Warner seeks a declaratory judgment. The court notes that "[i]t necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratory judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 253 Conn. 531, 536-37, 754 A.2d 153 (2000).
IV. CONCLUSION
Warner is barred from challenging the July 21, 2000 decision of the PZC, because the court lacks subject matter jurisdiction based on Warner's failure to establish aggrievement. Despite his failure to plead aggrievement, this court finds that, as to said decision, the plaintiff is neither statutorily or classically aggrieved. The court further finds that the plaintiff's claim is barred by General Statute § 8-8(r).
In light of the court's decision relative to the July 21, 2000 decision of the PZC, the court will limit the scope of its review to those documents received by the PZC at its special meeting on January 7, 2005; the minutes of said meeting; the zoning subdivision regulations in effect at that time and the zoning map. If any party, pursuant to General Statute § 8-8(k), and consistent with this memorandum, wishes to introduce additional evidence deemed by said party to be necessary for an equitable disposition of this appeal, the court will conduct a hearing for said purpose, at which all parties are ordered to be present. The hearing will take place at 10:00 a.m. on June 15, 2006. Counsel will be present at 9:30 a.m. to agree upon and mark exhibits.