Posted by: Patricia Salkin | September 2, 2010

CT Supreme Court Holds Adjoining Property Owners in Another State Have Standing to Challenge Zoning Action

Defendant companies entered into a contract where Grace Property would purchase 48 acres of Pacific Farm’s 74-acre property, which was bounded to the north by New York and to the east by Connecticut, to build a church.  The planning and zoning commission for the town of New Canaan granted subdivision application to resubdivide the property into parcel A and parcel B, and special permit application to construct the Church on parcel B by renovating and adding to an existing building to create a temporary sanctuary pending the approval of construction of a permanent sanctuary. 

Plaintiffs, who owned land in New York within 100 feet of the property appealed the commissions’ decision pursuant to CT Gen. Stat. § 8.8 claiming the subdivision and project violated zoning regulations.  The lower court dismissed, concluding the plaintiffs did not have standing to appeal the commission’s decision because their properties were located in New York, and § 8.8 was intended to protect only the interests of persons who owned land within the state.  

The Town then approved Grace Property’s application for an amendment to the special permit to allow them to construct a 900 person capacity permanent church.  Plaintiffs appealed claiming the proposed project violated zoning regulations, and the commission had acted arbitrarily capriciously and in abuse of its discretion in approving the amendment.  Their appeal was dismissed on the grounds that plaintiffs did not have standing because they didn’t own land in the state, and because the had ruled on that issue in the first appeal, the plaintiffs were barred by collateral estoppel from relitigating.  Plaintiffs appealed both trial court decisions, and the Supreme Court of Connecticut consolidated the appeals, reversed and remanded.

The first issue before the court was whether the trial court improperly concluded plaintiffs lacked standing to appeal from the commission’s decisions pursuant to § 8.8 because they do not own land in the state.  Under § 8.8, any person owning land that abuts or is within 100 ft of property, who is aggrieved by any decision of a board, may appeal to the superior court for the judicial district in which the municipality is located.  In determining whether plaintiffs were within the zone of interests protected by the statute, and thus had standing to make a claim, the court analyzed the doctrine of extraterritoriality.  When a statute doesn’t regulate conduct outside the state, there is no presumption that it does not apply extraterritoriality because the reason for that presumption- that states have limited power to regulate conduct outside their territorial jurisdiction- does not apply.  Since it could not be assumed that the legislature intended to encompass persons outside the territorial jurisdiction simply because of the phrase “any person,” the court looked to the public policy underlying the statute, which authorized municipalities to adopt planning regulations to “promote the general welfare and prosperity of its people.”  There would be no reason the legislature, by authorizing landowners in near proximity to subject land to enforce compliance, would intend to exempt land owners whose properties were in locations facing the greatest and most immediate effect of a proposed development because they were in another state.  The court concluded that allowing landowners in other states to challenge a proposed project would protect the interests of a municipality and its citizens and harmonious development and in public health and safety, and would not benefit them at the expense of those in the municipality.  Therefore, the plaintiffs did have standing to bring a claim under § 8.8 because they were within the zone of interest the regulation was designed to protect.

The second issue was whether the trial court’s decision, dismissing plaintiffs claim for lack of standing, could be affirmed on the ground that the plaintiffs were not statutorily aggrieved because the subdivision of the property was not stayed pending appeal pursuant to § 8-8(h) and because plaintiffs did not own land within 100 feet of parcel B on which the proposed church was to be built.  In the first two appeals, the trial court found the entire undivided property was the “land involved” in the commission’s decisions, and thus the plaintiffs owned property within 100 feet.  The court here concluded when there is an appeal, a subdivision becomes effective on the date that an appeal from the subdivision approval is terminated, and when general and specific statutes conflict they should be harmoniously construed so the specific statute controls.  The section that specifically applied to subdivision approval, § 8-25(a), trumped § 8-8 (h) governing the appeals from land use decisions generally, and accordingly, the trial court in each appeal properly concluded plaintiffs were statutorily aggrieved because they owned land within 100 feet of the undivided property.  This finding also meant it was unnecessary to address plaintiff’s claim that the trial court in the second appeal improperly determined that they were collaterally estopped from relitigating the issue of statutory aggrievement because that issue had been fully and finally litigated in the first appeal.

The last issue was whether trial court’s decision in the first appeal could be affirmed on the alternate ground that the plaintiffs failed to serve two copies of process on the town clerk as statutorily required.  The marshal served one copy of process on the town clerk, which constituted legal notice to the commission, and there was not a “total failure” but rather a formal defect that could be corrected.  Therefore, plaintiff failure to serve two copies of process did not deprive the trial court of subject matter jurisdiction.  Both judgments by the trial court were reversed and the case was remanded for further proceedings.                                       

Abel v. Planning and Zoning Commission of New Canaan, 2010 WL 2650519 (Conn.7/13/2010)

 The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR297/297CR81.pdf


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