Handsome, Inc. v. Planning & Zoning Commission ( 2015 )

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HANDSOME, INC. v. PLANNING & ZONING COMMISSION—DISSENT
PALMER, J., dissenting. Consistent with the findings
and conclusion of the trial court, the evidence in the
present case clearly and unequivocally establishes that
the named plaintiff, Handsome, Inc. (Handsome),1 was
aggrieved by the decision of the defendant, the Planning
and Zoning Commission of the Town of Monroe (com-
mission), which granted Handsome a conditional and
limited extension to a special exception permit that
the commission previously had awarded Handsome.
Although Handsome was divested of legal title to the
subject property by virtue of a foreclosure action
brought by MD Drilling & Blasting, Inc. (MD Drilling),
pursuant to which legal title passed to MD Drilling, it
is uncontested that, prior to the law day in that action,
Handsome, which has been in possession of and oper-
ated an excavation business on the property for more
than one decade, entered into an agreement with MD
Drilling to give Handsome the rights (1) to remain in
possession of the property, and to continue its excava-
tion operation and related activities, while it paid its
relatively modest debt to MD Drilling, and (2) to regain
title to the property upon satisfaction of that debt.
Throughout the proceedings in the present case, Hand-
some has relied on this agreement—with which it has
fully complied—in support of its claim of aggrievement,
and the trial court expressly found that the agreement
supported Handsome’s claim that it was aggrieved, even
though MD Drilling holds legal title to the property.
In rejecting the trial court’s conclusion, the majority
refuses to address that court’s factual findings with
respect to the import of Handsome’s agreement with
MD Drilling, concluding that the trial court did not actu-
ally rely on the agreement as a basis for finding that
Handsome was aggrieved, and that Handsome has failed
to adequately brief the issue in this court. See footnote
7 of the majority opinion. As I explain more fully herein-
after, both of these conclusions are demonstrably incor-
rect: The plaintiffs’ brief to this court explains exactly
why the trial court properly relied on the agreement
between Handsome and MD Drilling in concluding that
Handsome’s interest in the subject property is sufficient
to demonstrate aggrievement. Moreover, the only plau-
sible reading of the trial court’s decision is that the
trial court did rely on the agreement in finding that
Handsome was aggrieved.2 Thus, even if it had not
briefed the issue, Handsome, as an appellee in this
appeal, does not carry the burden of demonstrating
the correctness of the trial court’s decision; rather, the
commission bears the burden of establishing that the
decision was incorrect, and it cannot meet that burden.
Instead of considering the issue of aggrievement in
light of Handsome’s undisputed interest in the property,
as reflected in its agreement with MD Drilling—as the
trial court did—the majority concludes that Handsome
was not aggrieved solely because it does not have legal
title to the property, a fact that neither party disputes
and that we repeatedly have concluded is not required
to establish aggrievement. In refusing to acknowledge
the significance of the agreement between Handsome
and MD Drilling for aggrievement purposes, the major-
ity reaches a conclusion that flies in the face of the
well settled principle that ‘‘[t]he conclusion reached by
the [trial] court [on the question of aggrievement] can-
not be disturbed on appeal unless the subordinate facts
found do not support it.’’ (Internal quotation marks
omitted.) McNally v. Zoning Commission, 225 Conn.
1, 8, 621 A.2d 279 (1993). Contrary to the majority’s
conclusion, the record fully supports the trial court’s
finding that Handsome had standing to challenge the
commission’s decision because it was aggrieved by that
decision, even though it does not hold legal title to the
property. Indeed, the undisputed facts establish conclu-
sively that Handsome was aggrieved. Consequently, the
majority’s conclusion is both wrong as a matter of law
and manifestly unfair to Handsome, which is entitled
to defend the trial court’s ruling that the commission’s
decision concerning Handsome’s application for a per-
mit extension was unlawful in certain important
respects. Because Handsome was aggrieved by the com-
mission’s decision, the majority has improperly
deprived Handsome of its right to a decision by this
court on the merits of the commission’s appeal. I there-
fore respectfully dissent.3
The facts relevant to the trial court’s determination
that Handsome was aggrieved by the commission’s deci-
sion are not in dispute, and may be summarized briefly
as follows. Todd Cascella and Mona Cascella are the
president and secretary, respectively, of Handsome.
Todd Cascella transferred the subject property, 125
Garder Road in the town of Monroe, to Handsome by
way of a quitclaim deed, which was recorded in the
town land records on November 13, 2001. Handsome
subsequently applied for a special permit to construct
a 20,000 square foot industrial building on the property,
which the commission granted subject to an expiration
date of May 15, 2008. Prior to 2008, however, the vast
majority of Handsome’s business involved the sale of
sand and gravel excavated from the property to federal,
state and locally funded road projects. The actual exca-
vation work was done by another company, Cascella &
Son Construction, Inc. (Cascella & Son), which is
owned by Todd Cascella.
In March, 2006, MD Drilling brought an action against
Handsome and Cascella & Son, seeking to foreclose on
a mechanic’s lien that it had filed on the property. On
December 29, 2009, after a trial, the court, Mintz, J.,
rendered a judgment of strict foreclosure in favor of
MD Drilling. At that time, the court found the fair market
value of the property to be $542,000 and Handsome’s
debt to MD Drilling to be $27,271.55. The court originally
set March 2, 2010, as the law day but subsequently
granted a motion for an extension and postponed the
law day until June 29, 2010.
In the interim, on April 13, 2010, MD Drilling entered
into a written agreement with Handsome and Cascella &
Son that allowed Handsome to satisfy the $27,271.55
judgment and to maintain possession and, ultimately,
to regain ownership, of the property. Under the agree-
ment, Handsome and Cascella & Son are required to
make monthly payments of $500 until the judgment is
paid in full. In return, MD Drilling agreed that Handsome
may continue its excavation operations on the property
and otherwise remain in possession of the property.
The agreement further provides that, upon satisfaction
of the debt, the judgment of foreclosure will be ‘‘null
and void’’4 and the property will revert to Handsome.
MD Drilling also agreed to file periodic requests to
extend the law day as long as Handsome and Cascella &
Son were not in default under the agreement. Although
it appears from the record in the foreclosure action
that the law day was not postponed beyond June 29,
2010, MD Drilling never recorded a certificate of fore-
closure in the Monroe land records. The trial court
found that Handsome was not in default of the
agreement and that Handsome has continued certain
operations on the property and maintained equip-
ment there.
As the majority explains, during the pendency of the
foreclosure action, Handsome sought an extension of
the permit at issue in this appeal. The commission
denied the requested extension on April 24, 2008, and
the plaintiffs appealed to the Superior Court. On Sep-
tember 9, 2010, the court, Hon. Howard T. Owens, Jr.,
judge trial referee, sustained the plaintiffs’ appeal and
ordered the commission to grant the extension. The
commission did not appeal from that decision. In Octo-
ber and November, 2010, Handsome submitted written
requests to the commission seeking its approval of the
permit extension in accordance with the court’s deci-
sion. The commission finally addressed the matter at
its meeting on May 5, 2011. After first entering executive
session, the commission eventually reconvened the
meeting and granted the extension, albeit with several
conditions. Although the commission approved the
extension for five years, it made the approval retroac-
tive to March 20, 2008, such that the permit would have
expired on March 20, 2013, less than two years from
the date on which it was granted.
The plaintiffs again appealed from the commission’s
decision to the Superior Court. The commission moved
to dismiss the appeal, claiming, inter alia, that Hand-
some was not aggrieved by its decision because it no
longer held title to the property in light of the judgment
in MD Drilling’s foreclosure action. The plaintiffs
objected to the commission’s motion to dismiss,
arguing, inter alia, that legal title to the property is not
required to establish aggrievement and that Handsome’s
continued possession of the property, together with
its agreement with MD Drilling, which the plaintiffs
attached as an exhibit to its supporting memorandum
of law, was sufficient to establish aggrievement. In
response, the commission expressly acknowledged the
plaintiffs’ contention that the agreement with MD Dril-
ling afforded Handsome standing to maintain the pres-
ent action as a nonowner. The commission claimed,
however, that the trial court could not consider whether
Handsome’s agreement with MD Drilling provided a
basis for establishing aggrievement because the plain-
tiffs had not alleged those grounds in their complaint;
the plaintiffs had alleged, rather, that Handsome was
the ‘‘owner’’ of the property. The trial court rejected the
commission’s argument, and, on September 11, 2012,
denied the commission’s motion, albeit ‘‘without preju-
dice to raising . . . the issue of aggrievement’’ at a
later date.
After an evidentiary hearing on July 26, 2012, follow-
ing which the court entertained extensive argument by
counsel both on aggrievement and on the merits of
the appeal, the trial court issued its memorandum of
decision on December 21, 2012,5 in which it again
rejected the commission’s argument that Handsome
lacked standing to challenge the commission’s decision
for lack of aggrievement. The court stated that, because
MD Drilling has never recorded a certificate of foreclo-
sure in the Monroe land records, Handsome, ‘‘as [the]
record owner of the property at 125 Garder Road, [was]
aggrieved by the [commission’s] decision . . . .’’ The
court also observed, however, that the agreement
between Handsome and MD Drilling ‘‘provides that the
[foreclosure] judgment ‘[would] be null and void when
the . . . debt [was] satisfied,’ ’’ Handsome ‘‘[was] not
in default of the agreement, and . . . monthly pay-
ments as required by the [agreement] . . . [had] been
made.’’ The court further stated that ‘‘[t]he fact that
[the] agreement [between Handsome and MD Drilling]
provide[d] for a mechanism for satisfying the judgment
of strict foreclosure [and expressly authorized Hand-
some to remain on the property], solidifie[d] and
enhance[d] Handsome’s interest in the property.’’ The
court also explained that ‘‘[t]he judgment of strict fore-
closure [rendered] in favor of MD Drilling . . . [was]
not sufficient to deny aggrieved status to Handsome’’
because ‘‘[l]egal title to property is not required in order
for a party to satisfy the test for aggrievement.’’
The court next proceeded to analogize the present
case, in which Handsome retains both possession and
the right to regain ownership of the property, to other
cases in which the party found to be aggrieved did not
hold legal title to the property at issue. Citing first to
Antenucci v. Hartford Roman Catholic Diocesan Corp.,
142 Conn. 349, 114 A.2d 216 (1955), in which this court
reiterated the principle that ‘‘[t]he party in possession
is regarded by the law as the owner, except in a contest
with one who has the true title’’; (internal quotation
marks omitted) id., 355; the trial court then stated as
follows: ‘‘Aggrievement has been found [when] a party
was a contract purchaser; Shapero v. Zoning Board,
192 Conn. 367, 376 [472 A.2d 345] (1984); had obtained
an oral contract to enter into a long-term lease; Mou-
tinho v. Planning & Zoning Commission, 278 Conn.
660, 669 [899 A.2d 26] (2006); held a leasehold interest;
Michel v. Planning & Zoning Commission, 28 Conn.
App. 314, 324–25 [612 A.2d 778, cert. denied, 223 Conn.
923, 614 A.2d 824] (1992); or held a security interest in
the property. Goodridge v. Zoning Board of Appeals,
58 Conn. App. 760, 767 [755 A.2d 329, cert. denied, 254
Conn. 930, 761 A.2d 753] (2000).’’
Having concluded that Handsome was aggrieved by
the commission’s decision, the court turned to the mer-
its of the appeal. The court sustained the appeal, con-
cluding both that the commission lacked authority to
impose certain additional conditions on the permit as
a condition of the extension and that the commission
improperly had approved the extension retroactively
to March 20, 2008. This appeal by the commission
followed.
‘‘[P]leading and proof of aggrievement are prerequi-
sites to the trial court’s jurisdiction over the subject
matter of a plaintiff’s appeal. . . . [I]n order to have
standing to bring an administrative appeal, a person
must be aggrieved.’’ (Citation omitted; internal quota-
tion marks omitted.) Moutinho v. Planning & Zoning
Commission, supra, 278 Conn. 664. As the majority
has explained, ‘‘[t]he fundamental test for determining
[classical] aggrievement encompasses a well-settled
twofold determination: [F]irst, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the challenged action],
as distinguished from a general interest, such as is the
concern of all members of the community as a whole.
Second, the party claiming aggrievement must success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
[challenged action].’’ (Internal quotation marks omit-
ted.) Part II of the majority opinion, quoting Cambodian
Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868
(2008). ‘‘If a party is found to lack standing, the court
is without subject matter jurisdiction to determine the
cause.’’ (Internal quotation marks omitted.) Cambodian
Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, supra, 395.
We often have stated, however, that ‘‘[s]tanding is
not a technical rule intended to keep aggrieved parties
out of court; nor is it a test of substantive rights. Rather
it is a practical concept designed to ensure that courts
and parties are not vexed by suits brought to vindicate
nonjusticiable interests and that judicial decisions
which may affect the rights of others are forged in
hot controversy, with each view fairly and vigorously
represented. . . . These two objectives are ordinarily
held to have been met when a complainant makes a
colorable claim of direct injury [that] he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy.’’ (Internal
quotation marks omitted.) Broadnax v. New Haven,
270 Conn. 133, 153, 851 A.2d 1113 (2004).
Furthermore, it is well established that a person need
not be the owner of the subject property to demonstrate
that he or she is aggrieved by the decision of a planning
and zoning commission. See, e.g., Primerica v. Plan-
ning & Zoning Commission, 211 Conn. 85, 93–95, 558
A.2d 646 (1989). Rather, a person is aggrieved by such
a decision as long as he is ‘‘attempt[ing] to vindicate
arguably protected interests.’’ (Emphasis added; inter-
nal quotation marks omitted.) Cambodian Buddhist
Society of Connecticut, Inc. v. Planning & Zoning
Commission, supra, 285 Conn. 393. We previously have
explained, moreover, that there is no ‘‘precise standard
that defines the required interest a nonowner must pos-
sess in order to become an aggrieved party [in a zoning
appeal] . . . . Rather, we have held that the extent to
which a party with an interest in the property other
than that of an owner is aggrieved depends [on] the
circumstances of each case, because the concept of
standing is a practical and functional one designed to
ensure that only those parties with a substantial and
legitimate interest can appeal . . . .’’ (Internal quota-
tion marks omitted.) Moutinho v. Planning & Zoning
Commission, supra, 278 Conn. 666. Consistent with
these principles, cases addressing whether a nonowner
is aggrieved by a zoning decision have applied a flexible
standard for determining aggrievement to ensure that
parties who have an interest in the property at issue
can challenge that decision. In such cases, we have
recognized that, to establish aggrievement, a party need
not have a formal, legally enforceable agreement with
the landowner. Instead, we have looked to whether the
facts establish that the party claiming aggrievement has
‘‘a substantial and legitimate interest in the property
. . . .’’ (Internal quotation marks omitted.) Id., 670.
In Moutinho v. Planning & Zoning Commission,
supra, 278 Conn. 660, for example, we concluded that
the named plaintiff, Manuel Moutinho, was aggrieved
by the defendant planning and zoning commission’s
denial of his applications to build an asphalt plant on
property owned by a third party, notwithstanding the
trial court’s finding that Moutinho’s agreement with
the landowner was legally unenforceable. See id., 662,
668–70. Although Moutinho had no ownership or lease-
hold interest in the property, he had a long-standing
oral agreement with the property owner to enter into
a long-term lease if the commission approved his appli-
cations to build the asphalt plant. Id., 662–63. After the
planning and zoning commission denied the applica-
tions, Moutinho appealed to the trial court, which con-
cluded that he was not aggrieved because the oral
agreement between him and the owner violated the
statute of frauds, General Statutes § 52-550,6 and, there-
fore, was unenforceable. Id., 663–64. In reversing the
trial court’s judgment, we rejected the planning and
zoning commission’s assertion that the lack of a legally
enforceable agreement was fatal to Moutinho’s standing
to appeal. See id., 668–70. We concluded, rather, that
‘‘a landowner and a nonowner developer need not have
a written, legally enforceable agreement when other
facts, such as the existence of a credible, oral agree-
ment, establish that the developer has a specific, per-
sonal stake in the property.’’ Id., 668–69. ‘‘When the
evidence establishes the existence of an oral agreement
and the intent of the parties to abide by that agreement,
a substantial and legitimate interest in the property
exists.’’ (Internal quotation marks omitted.) Id., 669–70.
We explained that it was irrelevant whether the
agreement was legally enforceable under § 52-550
because that statute ‘‘governs disputes that arise
between the parties to a contract . . . and [a zoning
appeal] does not involve a contract dispute . . . .’’
(Citation omitted; footnote omitted.) Id., 670. Because
the evidence established that Moutinho and the prop-
erty owner intended to abide by their agreement, we
concluded that Moutinho was aggrieved by the planning
and zoning commission’s denial of his applications. Id.
In Moutinho, we relied on DiBonaventura v. Zoning
Board of Appeals, 24 Conn. App. 369, 588 A.2d 244,
cert. denied, 219 Conn. 903, 593 A.2d 129 (1991); see
Moutinho v. Planning & Zoning Commission, supra,
278 Conn. 668–69; in which the Appellate Court con-
cluded that the plaintiff Richard DiBonaventura, Jr.,
was aggrieved by the decision of the defendant zoning
board of appeals (board) denying his application for a
certificate of approval to operate a used car dealership
on property owned by DiBonaventura’s father. DiBona-
ventura v. Zoning Board of Appeals, supra, 370–72,
376–77. Although DiBonaventura had his father’s con-
sent to use the property for the planned car dealership,
he had no ownership or leasehold interest in the prop-
erty. See id., 376. In light of DiBonaventura’s lack of a
legally enforceable interest in the property, the trial
court concluded that he was not aggrieved by the
board’s decision. Id., 373. The Appellate Court reversed
the judgment of the trial court, concluding that DiBona-
ventura’s informal agreement with his father, coupled
with the fact that he was to be the owner of the business
operating on the property if the application was
approved, was sufficient to establish aggrievement. Id.,
376–77. DiBonaventura exemplifies the principle that
the aggrievement requirement is not intended to keep
a party out of court, as long as that party has a specific,
personal stake in the matter. ‘‘While in a strict sense
[DiBonaventura] may not have [had] a legally enforce-
able interest in the subject property, his interest [was]
readily distinguished from a general interest, such as
is the concern of all members of the community as a
whole.’’ Id., 376. The court further observed that ‘‘the
trial court’s decision that neither [DiBonaventura nor
his father was] aggrieved [was] an overly technical
application of the test for aggrievement.’’ Id., 377.
In accord with Moutinho and DiBonaventura, Con-
necticut courts consistently have applied a flexible and
pragmatic standard when called on to decide whether a
nonowner’s interest in property is sufficient to establish
aggrievement. See, e.g., Primerica v. Planning & Zon-
ing Commission, supra, 211 Conn. 93–95 (plaintiff who
sold property during pendency of appeal but leased
portion of property from new owner was aggrieved);
RYA Corp. v. Planning & Zoning Commission, 87
Conn. App. 658, 664–67, 672, 867 A.2d 97 (2005) (corpo-
ration acting as agent for nonowner developer of land
who had agreement with landowner was aggrieved by
denial of subdivision application); Goodridge v. Zoning
Board of Appeals, supra, 58 Conn. App. 767 (plaintiff
who held $60,000 mortgage on property after selling
parcel to owner was aggrieved); Charles F. Nejame Co.
v. Zoning Board of Appeals, Superior Court, judicial
district of Danbury, Docket No. CV-01-0342359-S
(November 8, 2001) (30 Conn. L. Rptr. 685, 686–87)
(plaintiff who used property with landowner’s permis-
sion and had oral agreement to enter into lease if chal-
lenge to cease and desist order was successful was
aggrieved). These cases underscore the oft cited princi-
ple that ‘‘[t]he concept of standing as presented . . .
by the question of aggrievement is a practical and func-
tional one designed to [ensure] that only those with a
genuine and legitimate interest can [pursue] an [action
in court].’’ (Internal quotation marks omitted.) Munhall
v. Inland Wetlands Commission, 221 Conn. 46, 54–55,
602 A.2d 566 (1992).
In light of the foregoing case law, it is readily apparent
that Handsome was aggrieved by the commission’s deci-
sion. Even though legal title to the property passed to
MD Drilling, Handsome retained a valuable interest in
the property. The agreement with MD Drilling expressly
permits Handsome to retain possession of the property,
and it further provides that, upon timely payment of
the debt owed to MD Drilling, the judgment of strict
foreclosure will be voided and ownership of the prop-
erty will revert to Handsome.7 As the trial court found,
Handsome was in compliance with the terms of the
agreement. In such circumstances, it could be hardly
clearer that Handsome’s interest in the property is more
than sufficient to satisfy the aggrievement requirement.
In fact, in light of the agreement between Handsome
and MD Drilling, and the court’s finding that Handsome
was in compliance with the agreement, Handsome has
established aggrievement as a matter of law, such that
the trial court could not reasonably have reached any
other conclusion.
In rejecting the trial court’s resolution of the
aggrievement issue, the majority makes no attempt to
explain why Handsome’s agreement with MD Drilling
is insufficient to support the trial court’s determination
that Handsome was aggrieved. Indeed, the majority fails
altogether to acknowledge the long line of cases estab-
lishing that legal title to property is not required to
establish aggrievement and sidesteps the trial court’s
express findings concerning Handsome’s agreement
with MD Drilling and the obvious import of that
agreement on the issue of aggrievement. As this court
previously has observed, we will not disturb a trial
court’s conclusion with respect to aggrievement unless
it is ‘‘unsupported by the subordinate facts or otherwise
violate[s] law, logic or reason.’’ (Internal quotation
marks omitted.) Bongiorno Supermarket, Inc. v. Zon-
ing Board of Appeals, 266 Conn. 531, 539, 833 A.2d
883 (2003). In the present case, because the facts fully
support the trial court’s finding of aggrievement, and
because that finding is sound as a matter of law, the
majority has no justification for vacating the trial
court’s judgment.
Instead of reviewing the trial court’s factual findings
to determine whether those facts are legally sufficient
to establish aggrievement, the majority focuses only on
the trial court’s reliance on Handsome’s status as the
record owner of the property and concludes that the
present case is essentially indistinguishable from South-
bury v. American Builders, Inc., 162 Conn. 633, 295
A.2d 566 (1972), a two page per curiam decision in
which we summarily dismissed the appeal of the parties
claiming to be aggrieved because they themselves had
‘‘acknowledged that they no longer had any interest
in the premises in question because of a foreclosure
subsequent to [the] appeal.’’ (Emphasis added.) Id., 634.
As the majority acknowledges, however, Southbury
stands only for the proposition that a party may not
maintain an appeal if its ‘‘appealable interest in a con-
troversy’’ is lost after judgment. (Emphasis added.) Id.;
see footnote 6 of the majority opinion. In the present
case, although Handsome was divested of its ownership
interest in the property, it did not lose its appealable
interest because, as the trial court found, Handsome
was aggrieved by virtue of its ongoing possession of
the property and its right to reacquire ownership of
the property from MD Drilling under the agreement
between Handsome and MD Drilling. Only by failing to
acknowledge that legal title is not required to establish
aggrievement and by failing to recognize the signifi-
cance of the radically different facts in the present case
can the majority assert that this case is no different
from Southbury.
The majority seeks to justify its refusal to address
the trial court’s finding that Handsome’s agreement with
MD Drilling creates an interest in the property sufficient
to establish aggrievement by claiming that Handsome’s
possessory interest in the premises as a result of the
agreement was not a basis of the trial court’s decision
and that the plaintiffs did not adequately brief the issue
on appeal. The majority specifically asserts that the
argument is made ‘‘in a mere three lines of the plaintiffs’
appellate brief and is unaccompanied by any supporting
analysis or citation to relevant legal authority’’ and that
the plaintiffs failed to make the argument ‘‘as an alterna-
tive ground for aggrievement.’’ Footnote 7 of the major-
ity opinion. Both of these contentions are baseless.
First, it is clear that the trial court relied on Handsome’s
agreement with MD Drilling in support of its aggrieve-
ment determination. Because the commission, as the
appellant, is challenging that determination, we neces-
sarily must address the trial court’s findings with
respect to the agreement, regardless of the adequacy
of the plaintiffs’ briefing of the issue. Second, even if
Handsome could not prevail unless the plaintiffs ade-
quately addressed the issue of the trial court’s reliance
on the agreement between Handsome and MD Drilling,
the plaintiffs’ briefing with respect to the significance
of Handsome’s agreement with MD Drilling is perfectly
sufficient for appellate review. I address these points
in turn.
With respect to the majority’s contention that the
trial court did not rely on Handsome’s agreement with
MD Drilling as a basis for finding that Handsome was
aggrieved, any fair reading of the trial court’s decision
belies such a claim. Thus, the majority’s claim that
Handsome cannot prevail on appeal because the plain-
tiffs have not adequately briefed the issue of why Hand-
some’s agreement with MD Drilling supports the trial
court’s aggrievement determination improperly places
the burden on the plaintiffs to prove the correctness
of the trial court’s ruling. It is axiomatic that ‘‘[t]he
burden rests [on] the appellant to show that there was
error in the judgment from which the appeal is taken
. . . .’’ Schwarzschild v. Martin, 191 Conn. 316, 326,
464 A.2d 774 (1983). As the appellant in the present
appeal, the commission bears the burden of demonstra-
ting that the trial court’s conclusion regarding aggrieve-
ment was factually or legally incorrect. It is apparent
that the commission cannot meet that burden.8 As I
discussed previously, the trial court determined that
‘‘[t]he judgment of strict foreclosure [rendered] in favor
of MD Drilling . . . [was] not sufficient to deny
aggrieved status to Handsome’’ because ‘‘[l]egal title to
property is not [required] in order for a party to satisfy
the test for aggrievement.’’ In making this determina-
tion, the trial court expressly relied on Handsome’s
written agreement with MD Drilling, which the plaintiffs
had introduced as an exhibit at the evidentiary hearing
on the matter. The trial court also found that Handsome
was not in default of its obligations under the agree-
ment. Finally, in reaching its conclusion, the court relied
on several cases in which this court concluded that
legal title to the property is not required to establish
aggrievement. In light of the clarity of the trial court’s
reasoning in support of its conclusion that Handsome’s
agreement with MD Drilling provides an interest suffi-
cient to establish aggrievement, the majority’s refusal
to address this finding on the ground that it was not
adequately briefed by Handsome—and to vacate the
judgment of the trial court without considering the mer-
its of its decision—is simply untenable.9 Furthermore,
even if Handsome could be deemed to have waived its
right to prevail on appeal by virtue of the plaintiffs’
failure to adequately brief the import of Handsome’s
agreement with MD Drilling on the issue of aggrieve-
ment, the majority’s assertion that the plaintiffs did not
adequately brief that issue is flatly contradicted by the
record. The plaintiffs explain in their brief to this court
that Handsome ‘‘is still in possession of the premises,’’
as permitted by the agreement, and that ‘‘Handsome
clearly retains a valuable equitable interest in the prem-
ises as a result of its agreement with MD Drilling to
‘void’ the foreclosure upon completion of [the] payment
arrangement.’’ Consistent with the foregoing points, the
plaintiffs further explain that ‘‘a judgment in Hand-
some’s favor would be of great benefit to Handsome
because the huge financial burden the commission has
attempted to impose will be lifted and Handsome will
have five years to complete the construction of the
building [to be erected on the property] and . . . would
be able to sell excess earth materials to contractors
with state and local governments who cannot purchase
materials presently from Handsome because Handsome
does not have a valid permit in place.’’ In addition,
Handsome seeks to have this court affirm the judgment
of the trial court in all respects, including, of course,
its finding of aggrievement, and so we necessarily must
evaluate the reasoning and conclusion of that court, as
reflected in its memorandum of decision, in reviewing
the parties’ claims concerning aggrievement. Notably,
all of the cases relevant to the issue are set forth in
the trial court’s memorandum of decision.
Finally, at oral argument before this court, the plain-
tiffs’ counsel addressed the aggrievement issue exten-
sively in response to questioning from panel members.
In his detailed responses, counsel explained, once
again, that property ownership is not a necessary pre-
requisite to aggrievement and, further, that Handsome
was aggrieved by virtue of its agreement with MD Dril-
ling under which it retains a possessory interest in, and
the right to regain title to, the property. Counsel for
the commission did not challenge these arguments but
maintained, rather, that, for pleading purposes, the
plaintiffs had relied solely on Handsome’s status as the
record owner of the property. That is no answer to
Handsome’s claim of aggrievement in view of the fact
that the commission had ample notice of the plaintiffs’
subsequent reliance on Handsome’s agreement with MD
Drilling. Indeed, the commission makes no claim that
it was prejudiced in any way by the trial court’s consid-
eration of the agreement for purposes of its aggrieve-
ment determination.10
It bears emphasis, moreover, that the plaintiffs con-
sistently have argued both that Handsome is the record
owner of the property and that, in any event, ownership
of the property is not required to establish aggrieve-
ment. The plaintiffs first raised this latter argument in
their objection to the commission’s pretrial motion to
dismiss for lack of aggrievement. At that time, the plain-
tiffs expressly argued that ‘‘[p]roof of aggrievement
does not require proof of an ownership interest in the
premises.’’ In support of this claim, the plaintiffs cited
no fewer than seven cases, including this court’s deci-
sion in Moutinho, arguing, inter alia, that ‘‘[t]he [com-
mission’s] entire argument is premised on the false
assumption that the appellant must be the owner in fee
simple of the property involved in the decision in order
to be able to prove aggrievement. Nothing could be
further from the truth.’’ Finally, the plaintiffs relied on
Handsome’s agreement with MD Drilling to demon-
strate why, in the present case, ownership is not a
necessary prerequisite to aggrievement.11 Indeed, as I
previously noted, the commission, in its response to the
plaintiffs’ objection to the motion to dismiss, expressly
acknowledged their contention that Handsome’s
agreement with MD Drilling afforded Handsome stand-
ing to maintain the present action as a nonowner. As
the foregoing amply demonstrates, the majority is incor-
rect in asserting that the commission is entitled to rever-
sal of the trial court’s judgment in favor of the plaintiffs
on the ground that Handsome has failed to adequately
defend the trial court’s finding that its agreement with
MD Drilling creates an interest sufficient to establish
aggrievement.12
Because the majority addresses only whether Hand-
some was aggrieved as the owner of the property, it
refuses to address Handsome’s argument that its inter-
est in the property would be harmed by the conditions
imposed in connection with the granting of the permit
extension, instead offering the conclusory assertion
that ‘‘[w]e need not address this claim . . . in light of
our previous conclusion that Handsome had no owner-
ship interest in the property.’’ Text accompanying foot-
note 7 of the majority opinion. For the reasons that I
have explained, and contrary to the conclusion of the
majority, Handsome’s interest in the property is more
than sufficient for standing purposes. Because the addi-
tional conditions imposed by the commission in connec-
tion with its granting of the permit extension pose a
significant barrier to Handsome’s continued use of the
property, in accordance with its agreement with MD
Drilling, Handsome is harmed by the commission’s deci-
sion to impose those additional conditions, and Hand-
some therefore was clearly aggrieved by the commis-
sion’s decision.
In sum, the majority’s conclusion that Handsome was
not aggrieved effectively deprives Handsome of its right
to challenge a decision that may very well force it out
of business—and one that the trial court already has
found to be unlawful—without any legal or factual basis
for denying Handsome that right.13 Our cases are clear
that the purpose of the aggrievement requirement is
not to close the courthouse door to a party whose rights
are substantially affected by a zoning decision but,
rather, to ensure that only those parties who have a
genuine and legitimate interest in the decision can chal-
lenge it in court. Handsome most certainly has ‘‘a per-
sonal stake in the outcome of the controversy . . .
[that] provides the requisite assurance of concrete
adverseness and diligent advocacy’’; (internal quotation
marks omitted) Broadnax v. New Haven, supra, 270
Conn. 153; which is all that is required to establish
aggrievement. Consequently, the trial court correctly
determined that Handsome was aggrieved by the com-
mission’s decision, and, therefore, this court is obli-
gated to consider and decide the merits of the com-
mission’s appeal.14 Accordingly, I dissent.
1
Todd Cascella, Handsome’s president, and Mona Cascella, Handsome’s
secretary, also are plaintiffs in the present case.
2
As I explain more fully hereinafter, the trial court explained that Hand-
some was aggrieved by the commission’s decision due to the fact that,
because MD Drilling has never filed a certificate of foreclosure in the land
records, Handsome is the record owner of the property. The majority rejects
this determination by the trial court because mere ‘‘record’’ ownership of
property, without more, is insufficient to establish aggrievement, a point
with which I generally agree. The majority, however, ends its analysis there
and refuses to address the trial court’s further finding that Handsome was
aggrieved in light of its agreement with MD Drilling giving Handsome the
right to continued possession of the property, as well as the right to regain
ownership of the property, as long as Handsome satisfies its debt to MD
Drilling.
3
Because the evidence establishes that Handsome was aggrieved by the
commission’s decision, I do not address the majority’s conclusion that Todd
Cascella and Mona Cascella, who also are plaintiffs; see footnote 1 of this
opinion; were not aggrieved in their individual capacities. See, e.g., Protect
Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Plan-
ning & Zoning Commission, 220 Conn. 527, 529 n.3, 600 A.2d 757 (1991)
(if one plaintiff is found to be aggrieved by decision of zoning board or
commission, reviewing court need not determine whether other plaintiffs
also are aggrieved).
4
Although the trial court found that the agreement provided that the
foreclosure judgment would be null and void upon payment of the debt, the
language of the agreement suggests a different meaning. Specifically, the
agreement provides that Handsome and Cascella & Son ‘‘stipulate to a
judgment of possession and an order of ejectment’’ in favor of MD Drilling
and that the ‘‘stipulation shall be held in escrow’’ as long as Handsome and
Cascella & Son are not in default of the agreement, and that ‘‘[s]aid judgment
and order will be null and void when the . . . debt is satisfied.’’ Thus, it
appears that the parties intended that payment of the debt would nullify
the judgment of possession and order of ejectment, not the judgment of
strict foreclosure. Nevertheless, because this discrepancy does not alter
my conclusion that Handsome was aggrieved, and because neither party
challenges the trial court’s finding that the agreement was intended to nullify
the judgment of strict foreclosure, for purposes of this appeal, I presume
that the trial court’s finding regarding the intent of the agreement was
correct. Moreover, the intent of the parties to the agreement is clear.
5
Prior thereto, on December 10, 2012, the court once again heard argument
from counsel on the issue of aggrievement.
6
General Statutes § 52-550 provides in relevant part: ‘‘(a) No civil action
may be maintained in the following cases unless the agreement, or a memo-
randum of the agreement, is made in writing and signed by the party, or
the agent of the party, to be charged . . . (4) upon any agreement for the
sale of real property or any interest in or concerning real property; [or] (5)
upon any agreement that is not to be performed within one year from the
making thereof . . . .’’
7
The commission acknowledged at oral argument before this court that,
pursuant to the agreement, Handsome has the right to regain title to the
property upon satisfaction of its debt to MD Drilling.
8
To the extent that the majority suggests that Handsome was required
to brief the issue of its agreement with MD Drilling as an alternative ground
for establishing aggrievement, that contention is incorrect. Simply stated,
Handsome was not required to treat that agreement as an alternative ground
for establishing aggrievement because the trial court relied expressly on
that agreement in concluding that Handsome was aggrieved.
9
The majority insists that the trial court did not rely on Handsome’s
agreement with MD Drilling in support of its conclusion that Handsome’s
interest in the property was sufficient to establish aggrievement but, rather,
that the court concluded only that Handsome was aggrieved as the record
owner of the property, and that the agreement merely ‘‘reinforced’’ that
record ownership interest. Footnote 7 of the majority opinion. This
restatement of the trial court’s decision is not accurate, primarily because
it simply makes no sense to say that a possessory interest in property,
coupled with the right to regain full ownership of that property, somehow
reinforces a party’s record ownership of the property. It is plain from the
trial court’s decision that the court did rely on the agreement to support
its conclusion that Handsome was aggrieved. After concluding that Hand-
some was aggrieved due to its status as the record owner of the property,
the court went on to state that the agreement ‘‘solidifie[d] and enhance[d]
Handsome’s interest in the property.’’ Immediately following that sentence,
the court underscored its reliance on the agreement by noting that ‘‘[t]he
judgment of strict foreclosure [rendered] in favor of MD Drilling . . . [was]
not sufficient to deny aggrieved status to Handsome . . . . Legal title to
property is not required in order for a party to satisfy the test for
aggrievement.’’ It could hardly be clearer that, as the trial court expressly
found, Handsome’s agreement with MD Drilling strengthened and augmented
Handsome’s claim of an interest in the property—above and beyond its
record ownership—sufficient to establish aggrievement.
Moreover, even if the trial court’s decision could be characterized as
ambiguous in some way—and that would not be a fair characterization—
it is axiomatic that we read ‘‘an ambiguous trial court record so as to support,
rather than contradict, its judgment.’’ (Internal quotation marks omitted.)
Walton v. New Hartford, 223 Conn. 155, 164, 612 A.2d 1153 (1992). This is
especially true when, as in the present case, the trial court’s underlying
factual findings unquestionably establish that Handsome was aggrieved by
the commission’s decision. Indeed, as I noted previously, if the trial court
had concluded that Handsome’s agreement with MD Drilling was insufficient
to establish aggrievement, we would be required to reject that conclusion
as clearly contrary to law. See Moutinho v. Planning & Zoning Commission,
supra, 278 Conn. 669–70 (rejecting trial court’s conclusion that oral agree-
ment between parties was insufficient to establish aggrievement).
10
Thus, although, as I indicated previously, this court has observed that
a party must plead and prove facts establishing aggrievement; see, e.g.,
Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 664; the
purpose of that requirement is merely to ensure that the court is not called
on to decide a case in which the party seeking relief does not have standing
to obtain it; see id., 664–65; because, unless that party has standing, the
court cannot decide the case due to a lack of subject matter jurisdiction.
See, e.g., One Country, LLC v. Johnson, 314 Conn. 288, 297, 101 A.3d 933
(2014). Notably, the majority does not claim otherwise. In the present case,
it is perfectly clear that, as the trial court found, Handsome had standing,
in light of its agreement with MD Drilling, to challenge the adverse decision
of the commission, and it is equally clear that Handsome continues to have
standing, in light of that agreement, to defend this appeal.
11
The plaintiffs’ objection to the commission’s motion to dismiss contains
the following statement with respect to Handsome’s agreement with MD
Drilling: ‘‘In response to the [commission’s] claims [seeking dismissal of the
plaintiffs’ appeal to the Superior Court, the plaintiffs submit] in conjunction
with this objection [to the commission’s motion], as exhibit A, a copy of a
settlement agreement between MD Drilling . . . and Handsome . . . dated
April 13, 2010, [in which] Handsome . . . agreed to pay MD Drilling [$500]
per month until the debt is paid in full, and the parties agreed that Handsome
. . . retained possession of 125 Garder Road and that ‘said judgment and
order shall be null and void when the . . . debt is satisfied.’ The agreement
also obligated MD Drilling to periodically request extensions of the law day
so long as Handsome . . . was not in default of its payment agreement.
There is no dispute that Handsome . . . has continued in possession of the
property to this date.’’ The fact that the commission clearly understood that
Handsome’s claim of aggrievement was based on its possessory and potential
future ownership of the property is reflected in the commission’s reply
memorandum of law to the plaintiffs’ objection, in which it characterizes
Handsome as ‘‘asserting that [it] had entered into an agreement with MD
[Drilling] which [it] contend[s] grants [it] standing to maintain this action
as a nonowner.’’ (Emphasis in original.)
12
The majority apparently contends that the plaintiffs somehow aban-
doned or waived this claim by failing to raise it again following the eviden-
tiary hearing on the commission’s motion to dismiss. This contention is
wholly without merit and utterly unfair to Handsome. As the majority
acknowledges, the plaintiffs clearly and unequivocally raised the claim in
their pretrial objection to the commission’s motion to dismiss. Thereafter,
the court held a brief evidentiary hearing at which the plaintiffs introduced
Handsome’s agreement with MD Drilling through Todd Cascella, who also
testified that Handsome was in compliance with that agreement, to substanti-
ate the standing claim that they had raised in their objection to the commis-
sion’s motion to dismiss. Indeed, there would have been no reason for the
plaintiffs to adduce such evidence if they were not relying on it for purposes
of establishing standing. As the plaintiffs’ counsel explained at oral argument
before this court, the plaintiffs simply did not address the issue of standing
at all in their posttrial brief—they instead addressed other issues that also
needed to be resolved at that time—because they had nothing to add to
their pretrial brief. Moreover, the record is clear that both the commission
and the trial court fully recognized that the plaintiffs were relying on Hand-
some’s possessory interest under Handsome’s agreement with MD Drilling
to establish standing. With respect to the commission, its counsel expressly
argued, immediately following the evidentiary portion of the hearing, that,
contrary to Handsome’s claim, the agreement was not sufficient to establish
Handsome’s aggrievement. Of course, the trial court also recognized that
the plaintiffs were relying on the agreement in support of their claim of
aggrievement: the court pressed counsel for the commission on this point
at the hearing and then rejected counsel’s contention in finding that Hand-
some was, in fact, aggrieved. In such circumstances, it is nothing short of
a miscarriage of justice to conclude that the plaintiffs failed to preserve the
issue of Handsome’s aggrievement when they thoroughly briefed the issue
in the trial court and then supplemented their brief with the necessary
evidence, namely, Handsome’s agreement with MD Drilling and Handsome’s
continued compliance with that agreement.
13
Although the plaintiffs successfully challenged the commission’s deci-
sion in the trial court, under the majority’s holding, Handsome lacks standing
to defend this appeal because it no longer has an interest in the subject
property. In such circumstances, the remedy is to vacate the judgment of
the trial court and to remand the case to that court with direction to dismiss
Handsome’s appeal from the commission’s decision. Thus, under the majori-
ty’s decision, the trial court’s ruling sustaining the plaintiffs’ appeal is null
and void.
14
Compounding the unfairness of the majority’s decision, the commission
conceded in the trial court that its retroactive approval of the permit exten-
sion was contrary to law, and it has not challenged the trial court’s ruling
with respect to that issue. Nevertheless, because the majority concludes
that Handsome does not have standing to challenge the commission’s deci-
sion, the commission’s unlawful retroactive approval of the extension will
go unremedied.