R & R Pool & Home, Inc. v. Zoning Board of Appeals

684 A.2d 1207, 43 Conn. App. 563, 1996 Conn. App. LEXIS 537
CourtConnecticut Appellate Court
DecidedNovember 19, 1996
Docket15050
StatusPublished
Cited by45 cases

This text of 684 A.2d 1207 (R & R Pool & Home, Inc. v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R & R Pool & Home, Inc. v. Zoning Board of Appeals, 684 A.2d 1207, 43 Conn. App. 563, 1996 Conn. App. LEXIS 537 (Colo. Ct. App. 1996).

Opinion

FOTI, J.

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 and R Pool and 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 [565]*565partnership 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 3The 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.”2 The application lists the individuals involved in the partnerships as the owners4 and R & R as the name of the business to be conducted on the property. The planning director denied the application.5 [566]*566On 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.

[567]*567II

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 [568]*568of 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 242, 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.

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Bluebook (online)
684 A.2d 1207, 43 Conn. App. 563, 1996 Conn. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-r-pool-home-inc-v-zoning-board-of-appeals-connappct-1996.