Mayer v. Historic Dist. Comm'n of Groton , 325 Conn. 765 ( 2017 )

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ROBERT MAYER ET AL. v. HISTORIC
DISTRICT COMMISSION OF THE
TOWN OF GROTON ET AL.
(SC 19568)
(SC 19569)
Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Argued January 18—officially released May 30, 2017
Thomas F. Collier, with whom was Frank N.
Eppinger, for the appellants (plaintiffs).
Michael P. Carey, for the appellee (named
defendant).
Harry B. Heller, for the appellees (defendant Steven
Young et al.).
Opinion
ROBINSON, J. The principal issue in this appeal is
whether the statutory aggrievement principles of Gen-
eral Statutes § 8-81 extend to appeals from the decisions
of historic district commissions brought pursuant to
General Statutes § 7-147i.2 The plaintiffs, Robert Mayer
and Mary Pat Mayer, appeal3 from the judgments of the
trial court dismissing their appeals from two decisions
of the named defendant, the Historic District Commis-
sion of the Town of Groton (commission), with respect
to alterations to a barn located on real property owned
by the defendants Steven Young and Caroline Young
(applicants).4 On appeal, the plaintiffs claim that the
trial court improperly concluded that: (1) statutory
aggrievement under § 8-8 does not extend to historic
district commission appeals brought pursuant to § 7-
147i; and (2) they had failed to establish that they were
classically aggrieved with respect to each of the com-
mission’s two decisions. We disagree and, accordingly,
affirm the judgments of the trial court.
The record reveals the following relevant facts and
procedural history. The plaintiffs own real property
located at 50 Pearl Street in the Mystic River Historic
District within the town of Groton (town). The appli-
cants own abutting real property located at 52 Pearl
Street. On May 1, 2012, the applicants sought a certifi-
cate of appropriateness from the commission that
would allow them to remove nine feet, seven inches
from the southern end of a historic barn located on
their property, which would eliminate their need to
obtain a variance from the town’s lot coverage regula-
tions in connection with plans to build an addition to
their house. At a public hearing on May 15, 2012, the
commission voted to grant that application for a certifi-
cate of appropriateness, despite the fact that the plain-
tiffs appeared and objected to the application. On May
25, 2012, the plaintiffs appealed from the commission’s
decision granting the certificate of appropriateness to
the trial court pursuant to § 7-147i (first appeal).
While the first appeal was pending before the trial
court, on September 1, 2012, the applicants requested
a second certificate of appropriateness from the com-
mission to: (1) modify the barn by removing a portion
not in public view, in accordance with an accompanying
architectural drawing; and (2) ‘‘modify and expand [the]
existing rear addition’’ to the house. Specifically, the
applicants sought the commission’s approval of a pro-
posal to reduce the overall footprint of the barn while
leaving several of its facades intact, in order to make
additional room for the contemplated addition. The
commission held a public hearing on the second appli-
cation on September 18, 2012. The commission then
continued the hearing to a second session, held on
October 16, 2012. At that hearing, the applicants with-
drew the portion of the application seeking a certificate
of appropriateness with respect to alterations to the
main house. After some discussion, the commission
found that it lacked jurisdiction over the remainder of
the matter because ‘‘the portion of the [barn at issue
did] not meet the definition of an exterior architectural
feature that is open to view from a public street, way
or place.’’ On October 29, 2012, the plaintiffs appealed
from the commission’s finding of no jurisdiction to the
trial court pursuant to § 7-147i (second appeal).
The trial court held a hearing on both appeals on
July 22, 2014. Following testimony by the plaintiffs to
establish their aggrievement in each appeal, the defen-
dants moved to dismiss both appeals for lack of statu-
tory or classical aggrievement. The trial court
subsequently issued separate memoranda of decision
granting the motions of the defendants to dismiss the
two appeals.
In its memoranda of decision, the trial court first
agreed with the defendants’ claim that statutory
aggrievement under § 8-8 (a) does not apply to historic
district commission appeals brought pursuant to § 7-
147i. Rejecting the contrary analysis in Peeling v. His-
toric District Commission, Superior Court, judicial dis-
trict of Stamford-Norwalk, Docket No CV-06-4009772-
S (November 1, 2006) (42 Conn. L. Rptr. 284), the trial
court held that § 7-147i ‘‘is not ambiguous; it simply
does not provide any alternative to proving actual
aggrievement. The legislature could have but did not
provide expressly, or incorporate the per se
aggrievement provision in § 8-8 (a) (1) . . . .’’
The trial court then turned to classical aggrievement.
With respect to the first appeal, the trial court acknowl-
edged that the plaintiffs had pleaded that they were
aggrieved. The trial court nevertheless concluded that
the plaintiffs had ‘‘rested their case on aggrievement
without presenting any evidence of such aggrievement
or citing any evidence in the record, let alone any spe-
cific testimony or exhibit in the record, from which the
court could find aggrievement as a matter of fact.’’ The
court further rejected the plaintiffs’ reliance on the
administrative record pursuant to State Library v. Free-
dom of Information Commission, 240 Conn. 824, 832–
33, 694 A.2d 1235 (1997), noting the plaintiffs’ failure
to cite specific references to the administrative record
during their case-in-chief, and stating that even if it
were to search the record, the plaintiffs had failed to
establish ‘‘the possibility . . . that [they] have a spe-
cific personal and legal interest in the subject of the
[commission’s] decision which [had] been specially and
injuriously affected . . . .’’5 Accordingly, the court ren-
dered judgment dismissing the first appeal.
With respect to the second appeal, the trial court
concluded that the plaintiffs failed to plead that they
were classically aggrieved by the commission’s deci-
sion. The court also emphasized that the commission’s
decision to permit the applicants to remove a portion
of the barn did not directly harm the plaintiffs, observ-
ing that they could not see that portion of the barn
from their property, and there was no ‘‘claim, let alone
credible evidence,’’ that the removal of that portion of
the barn ‘‘harmed the value [of the plaintiffs’ property].’’
The trial court reiterated that the possibility that the
applicants might use the space to build an addition did
not render the plaintiffs aggrieved. See footnote 5 of this
opinion. Accordingly, the trial court rendered judgment
dismissing the second appeal. These appeals followed.
See footnote 3 of this opinion.
On appeal, the plaintiffs claim that the trial court
improperly concluded, with respect to both appeals,
that: (1) the statutory aggrievement provided by § 8-8
(a) does not apply to historic district commission
appeals brought pursuant to § 7-147i; and (2) they were
not classically aggrieved. We address each of these
claims in turn. Additional relevant facts will be set forth
as necessary.
‘‘Before we address the merits of the parties’ claims,
we briefly set forth the law governing aggrievement
. . . . [P]leading and proof of aggrievement are prereq-
uisites 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. . . .
‘‘Standing . . . 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. . . .
‘‘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 pos-
sibility of an adverse effect on a legally protected inter-
est. . . .
‘‘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, par-
ticular legislation grants standing to those who claim
injury to an interest protected by that legislation.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mou-
tinho v. Planning & Zoning Commission, 278 Conn.
660, 664–65, 899 A.2d 26 (2006).
I
We begin with the plaintiffs’ claim that the trial court
improperly concluded that the statutory aggrievement
principles of § 8-8 (a) do not apply to appeals from
historic district commission decisions brought pursuant
to § 7-147i. The plaintiffs contend that the language of
§ 7-147i, which provides that ‘‘[p]rocedure upon such
appeal shall be the same as that defined in section 8-
8,’’ is plain and unambiguous and, as such, affording
them the statutory aggrievement provided by § 8-8 (a)
is consistent with the purpose of that statute, because
they are ‘‘distinct from other property owners due to
[their] obvious interest as ‘the property next door.’ ’’
The plaintiffs argue that the legislature has, for more
than ten years, acquiesced in the Superior Court’s con-
struction of §§ 7-147i and 8-8 (a) in Peeling v. Historic
District Commission, supra, 42 Conn. L. Rptr. 284,
which held that statutory aggrievement applies in his-
toric district commission appeals. The plaintiffs further
argue that the ‘‘ ‘[e]xcept as provided’ ’’ by § 7-147i lan-
guage in § 8-8 ‘‘applies only to the various time periods
for appeals in the listed legal proceedings’’ set forth in
§ 8-8 (b), and ‘‘does not exclude statutory aggrievement
in § 7-147i.’’
In response, the commission contends that the trial
court properly determined that statutory aggrievement
does not apply in appeals from historic district commis-
sions pursuant to § 7-147i. The commission argues that,
even if § 7-147i is deemed to incorporate all of § 8-8
(a), the plain language of § 8-8 (a) confers statutory
aggrievement only on persons aggrieved by decisions
of planning commissions, zoning commissions, zoning
boards of appeal, or combined planning and zoning
commissions. Citing a Connecticut land use treatise;
see T. Tondro, Connecticut Land Use Regulation (2d
Ed. 1992), pp. 547–48; the commission contends that
this limited provision of statutory aggrievement in § 8-
8 (a) plainly and unambiguously provides that parties
appealing from decisions of other types of land use
agencies must prove classical aggrievement. Accord-
ingly, the commission argues that the Superior Court’s
decision in Peeling is both dictum and wrongly decided.
We agree with the commission and conclude that § 8-
8 (a) does not afford statutory aggrievement in historic
district commission appeals brought pursuant to § 7-
147i.
Whether §§ 7-147i and 8-8 (a) combine to provide
statutory aggrievement in historic district commission
appeals presents a question of statutory construction
over which we exercise plenary review. Gonzalez v.
O & G Industries, Inc., 322 Conn. 291, 302, 140 A.3d 950
(2016). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . 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 interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . . The
test to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) Id., 302–303.
We begin with the text of the statutes. Section 7-147i
provides in relevant part that: ‘‘Any person or persons
severally or jointly aggrieved by any decision of the
historic district commission or of any officer thereof
may, within fifteen days from the date when such deci-
sion was rendered, take an appeal to the superior court
for the judicial district in which such municipality is
located . . . . Procedure upon such appeal shall be the
same as that defined in section 8-8.’’ (Emphasis
added.)
Section 8-8 (a) (1), in turn, defines ‘‘ ‘[a]ggrieved per-
son’ ’’ as ‘‘a person aggrieved by a decision of a board,’’6
stating further that ‘‘[i]n 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 in this state that abuts or is within a radius of one
hundred feet of any portion of the land involved in the
decision of the board.’’ (Emphasis added.)
Moving beyond the definitions, § 8-8 (b) then provides
in relevant part: ‘‘Except as provided in subsections
(c), (d) and (r) of this section and sections 7-147 and
7-147i, any person aggrieved by any decision of a board,
including a decision to approve or deny a site plan
pursuant to subsection (g) of section 8-3 or a special
permit or special exception pursuant to section 8-3c,
may take an appeal to the superior court for the judicial
district in which the municipality is located . . . .’’
(Emphasis added.)
Read together, we conclude that §§ 7-147i and 8-8
do not provide for statutory aggrievement in historic
district commission appeals. Even if we assume that
the reference to ‘‘procedure’’ in § 7-147i incorporates
by reference the aggrievement provisions of § 8-8 (a),
the plain and unambiguous language of § 8-8 (a) (1)
only confers statutory aggrievement with respect to
decisions of a limited array of land use agencies,
namely, ‘‘a zoning commission, planning commission,
combined planning and zoning commission or zoning
board of appeals . . . .’’ Reading this enumeration of
land use agencies to include historic district commis-
sions would contravene the ‘‘doctrine of expressio
unius est exclusio alterius—the expression of one thing
is the exclusion of another—[under which] we presume
that when the legislature expresses items as part of a
group or series, an item that was not included was
deliberately excluded.’’ DeNunzio v. DeNunzio, 320
Conn. 178, 194, 128 A.3d 901 (2016). Put differently, it
is well settled that ‘‘[w]e are not permitted to supply
statutory language that the legislature may have chosen
to omit.’’ (Internal quotation marks omitted.) Dept. of
Public Safety v. State Board of Labor Relations, 296
Conn. 594, 605, 996 A.2d 729 (2010).
Moreover, it is well settled that the legislature, in
enacting the statutory aggrievement provision of § 8-8
(a) (1), ‘‘is presumed to have acted with knowledge
of existing statutes and with an intent to create one
consistent body of law. . . . The General Assembly is
always presumed to know all the existing statutes and
the effect that its action or [lack thereof] will have [on]
any one of them. And it is always presumed to have
intended that effect which its action or [lack thereof]
produces.’’ (Internal quotation marks omitted.) Envi-
rotest Systems Corp. v. Commissioner of Motor Vehi-
cles, 293 Conn. 382, 398, 978 A.2d 49 (2009). This pre-
sumption is particularly apt in this case, given that § 7-
147i, first enacted in 1961; see Public Acts 1961, No. 430,
§ 11; predated the statutory aggrievement provisions in
§ 8-8, which were first enacted in 1967, broadened in
1977, and reorganized in 1989. See Public Acts 1989,
No. 89-356, § 1; Public Acts 1977, No. 77-470; Public
Acts 1967, No. 712. The legislature’s awareness of the
historic district commission legislation is more than
presumptive in this context, given that § 8-8 (b)
expressly refers to § 7-147i in carving out certain excep-
tions to the land use appeals procedure, in particular
the appeal period and service of process.
Indeed, looking beyond § 8-8 (a) (1), related statutes
affecting land use appeals demonstrate that, if the legis-
lature wanted to create statutory aggrievement in his-
toric district cases, ‘‘it could have done so expressly.’’
Dept. of Public Safety v. State Board of Labor Relations,
supra, 296 Conn. 605. In particular, we note General
Statutes § 22a-43 (a), which allows for administrative
appeals from decisions of municipal inland wetlands
and watercourses commissions by ‘‘[t]he commissioner
or any person aggrieved’’ or ‘‘any person owning or
occupying land which abuts any portion of land within,
or is within a radius of ninety feet of, the wetland or
watercourse involved in any regulation, order, decision
or action . . . .’’ Thus, we agree with the commission
that the legislature’s failure to provide expressly for
statutory standing with respect to historic district com-
mission appeals is significant, especially in light of the
fact that the legislature has done so with respect to
appeals from other municipal land use agencies. See T.
Tondro, supra, p. 548 (opining that statutory
aggrievement not available in historic district cases
because ‘‘the legislature has provided a statutory pre-
sumption of aggrievement under some regulatory pro-
grams but not others’’); accord Edgewood Village, Inc.
v. Housing Authority, 265 Conn. 280, 293, 828 A.2d 52
(2003) (‘‘[a]though the plaintiffs reside next to or near
the property at issue, the housing scheme does not
reflect concerns that mere proximity to public housing
would bestow a specific and legal interest due to the
defective notice’’), cert. denied, 540 U.S. 1180, 124 S.
Ct. 1416, 158 L. Ed. 2d 82 (2004).
We further disagree with the plaintiffs’ reliance on
the doctrine of legislative acquiescence, under which
‘‘we may infer that the failure of the legislature to take
corrective action within a reasonable period of time
following a definitive judicial interpretation of a statute
signals legislative agreement with that interpretation.’’
State v. Courchesne, 296 Conn. 622, 717, 998 A.2d 1
(2010). Specifically, the plaintiffs rely on the legisla-
ture’s failure to amend §§ 7-147i or 8-8 (a) (1) in
response to Peeling v. Historic District Commission,
supra, 42 Conn. L. Rptr. 284, in which the Superior
Court concluded that the reference in § 7-147i to the
‘‘ ‘procedure’ ’’ in § 8-8 ‘‘clearly states the legislature’s
intent to incorporate the statutory aggrievement stan-
dards of . . . § 8-8 and makes them applicable to
appeals from the actions of historic district commis-
sions.’’7 Although we have applied the doctrine of legis-
lative acquiescence to Superior Court decisions, we
have done so only with respect to the limited array of
significant trial court decisions that the Reporter of
Judicial Decisions has officially published in the Con-
necticut Supplement. See General Statutes (Rev. to
2015) § 51-215a (a); see also State v. Fernando A., 294
Conn. 1, 20 n.15, 981 A.2d 427 (2009) (en banc) (‘‘the
fact that [State v. Doe, 46 Conn. Supp. 598, 765 A.2d
518 (2000)], is a Superior Court decision not binding
statewide does not detract from its status at that time
as the only published authority construing [General
Statutes] § 46b-38c’’); accord State v. Courchesne,
supra, 717–18 (unnecessary to apply presumption of
legislative acquiescence because legislative history
demonstrated General Assembly’s approval of two pub-
lished Superior Court decisions adopting common-law
‘‘born alive rule’’). Because Peeling lacks the preceden-
tial imprimatur and enhanced public notice that attends
official publication in the Connecticut Supplement, we
decline to presume the legislature aware of it for pur-
poses of legislative acquiescence.8
Finally, we acknowledge the plaintiffs’ reliance on
the policy underlying statutory aggrievement, as
expressed in the legislative history of § 8-8 (a) (1),
namely, to eliminate the often formulaic litigation of the
aggrievement issue by immediate neighbors to project
proposals.9 Extension of statutory aggrievement might
well be consistent with expectations of those who pur-
chase real property in historic districts. See General
Statutes § 7-147a (b); Gibbons v. Historic District Com-
mission, 285 Conn. 755, 761–62, 941 A.2d 917 (2008).
The plain and unambiguous language of §§ 7-147i and
8-8 (a) does not, however, allow for implementation of
this policy by way of statutory interpretation. Particu-
larly ‘‘[i]n areas where the legislature has spoken . . .
the primary responsibility for formulating public policy
must remain with the legislature,’’ and ‘‘[i]t is not the
function of courts to read into clearly expressed legisla-
tion provisions which do not find expression in its
words . . . .’’10 (Internal quotation marks omitted.)
State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869
(1987). Accordingly, we conclude that the trial court
properly determined that the plaintiffs were not statuto-
rily aggrieved under §§ 7-147i and 8-8 (a) (1).
II
We next turn to the plaintiffs’ claim that the trial court
improperly determined that they had not established
classical aggrievement in either appeal. Before
addressing the plaintiffs’ specific claims, we note the
following generally applicable legal principles and the
relevant standard of review. As indicated previously,
the ‘‘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 successfully estab-
lish that this specific personal and legal interest has
been specially and injuriously affected by the [chal-
lenged action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected. . . .
‘‘Mindful that it is a fundamental concept of judicial
administration that no person is entitled to set the
machinery of the courts in operation except to obtain
redress for an injury he has suffered or to prevent an
injury he may suffer, either in an individual or a repre-
sentative capacity . . . [a plaintiff is] required to plead
and prove some injury in accordance with our rule on
aggrievement. . . . Accordingly, [i]t [is] the function
of the trial court to determine . . . first, whether the
[plaintiff’s] allegations if they should be proved would
constitute aggrievement as a matter of law, and second,
if as a matter of law they would constitute aggrievement,
then whether [the plaintiff] proved the truth of [the]
allegations. . . . Although the question of whether a
party is aggrieved presents a question of fact in cases
involving disputed facts . . . the question of whether
the pleadings set forth sufficient facts, if presumed true,
to establish a party’s aggrievement presents a question
of law over which we exercise plenary review.’’ (Cita-
tion omitted; internal quotation marks omitted.) Hand-
some, Inc. v. Planning & Zoning Commission, 317
Conn. 515, 526–27, 119 A.3d 541 (2015).
A
We begin with the plaintiffs’ challenge to the trial
court’s conclusion in the first appeal, namely, that they
did not prove that they were classically aggrieved by
the commission’s May 15, 2012 decision to allow the
applicants to remove nine feet, seven inches from the
southern end of the barn. Relying on State Library v.
Freedom of Information Commission, supra, 240
Conn. 832–33, the plaintiffs first contend that the trial
court improperly declined to consider the facts in the
administrative record, in particular Robert Mayer’s tes-
timony before the commission about the significant
reduction of the plaintiffs’ property value that would
be caused by the applicants’ proposed house addition,
which would block the water views from the plaintiffs’
property. The plaintiffs also claim that they were
aggrieved by ‘‘gross procedural defects’’ during the pro-
ceedings before the commission, such as defective
notice of hearings and the commission’s failure to fol-
low its own procedures.
In response, the commission argues, inter alia, that
there was no evidence of classical aggrievement
because the record established only the mere proximity
of the plaintiffs’ home to the applicants’ property, which
is insufficient as a matter of law. Relying on Water
Pollution Control Authority v. Keeney, 234 Conn. 488,
662 A.2d 124 (1995), the commission then contends that,
even if the court searches the administrative record
pursuant to State Library v. Freedom of Information
Commission, supra, 240 Conn. 832, the evidence of
aggrievement is entirely speculative because there is
no claim that a reduction of the barn’s size would
obstruct the plaintiffs’ water views and that this concern
relates to only the effect of the contemplated addition,
which was not a matter before the commission at that
time. The commission also argues that the plaintiffs’
claims of damage to their property value are founded
only on the hearsay statements of unnamed profession-
als, cited in Robert Mayer’s statements before the com-
mission. See footnote 15 of this opinion. Finally, the
commission contends that the plaintiffs’ allegations of
procedural defects, including defective notice of the
public hearing, do not establish classical aggrievement.
We agree with the commission, and conclude that the
trial court properly determined that the plaintiffs did
not prove that they were classically aggrieved in the
first appeal.
Even if we look to the evidence in the administrative
record before the commission, as urged by the plain-
tiffs,11 we conclude that the trial court properly deter-
mined that the plaintiffs were not aggrieved parties in
the first appeal. Assuming, without deciding, that the
first prong of the aggrievement test—namely, a specific,
personal and legal interest in the commission’s deci-
sion—is satisfied because of the adverse impact of the
applicants’ proposed addition on the plaintiffs’ property
values12 by virtue of its effect on their water views,13
the plaintiffs cannot satisfy the second prong of the
test—namely, that such an interest has been specially
and injuriously affected by the challenged action.
‘‘Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Handsome, Inc. v.
Planning & Zoning Commission, supra, 317 Conn. 526.
Although the adverse effect on the plaintiffs’ legally
protected interest need not be certain to establish
aggrievement, it nevertheless is well settled that, even
when property values are at issue, ‘‘speculative concern
. . . even if true [does] not rise to the level of
aggrievement. Allegations and proof of mere generaliza-
tions and fears are not enough to establish
aggrievement.’’ (Internal quotation marks omitted.)
Water Pollution Control Authority v. Keeney, supra,
234 Conn. 496; see also, e.g., Mystic Marinelife Aquar-
ium, Inc. v. Gill, 175 Conn. 483, 497, 400 A.2d 726 (1978)
(trial court properly found no aggrievement when no
credible evidence of ‘‘likely depreciation’’ of plaintiffs’
property and ‘‘no credible evidence of any other adverse
effect in their property, if any, resulting from the pro-
posed activity’’); Joyce v. Zoning Board of Appeals,
150 Conn. 696, 698, 187 A.2d 239 (1962) (after finding
supporting testimony by realtor unpersuasive, trial
court properly rejected plaintiff’s concern that grant of
permit to open doctor’s office would ‘‘depreciate the
value of his property, which was about 350 feet from the
doctor’s premises’’); Goldfisher v. Connecticut Siting
Council, 95 Conn. App. 193, 198–200, 895 A.2d 286
(2006) (upholding finding of no aggrievement because
trial court properly credited testimony of defendant’s
appraiser that alteration of ‘‘special and somewhat
unique’’ view from plaintiff’s property by construction
of cell tower would not have lowered his property value,
rather than testimony to contrary by plaintiff’s
appraiser); Olsen v. Inland Wetlands Commission, 6
Conn. App. 715, 719, 507 A.2d 495 (1986) (trial court
reasonably found that property assessor’s testimony
that ‘‘commission’s approval of the application would
depreciate the value of [the plaintiff’s] property’’ was
‘‘purely speculative and insufficient to establish
aggrievement’’).
The Appellate Court’s decision in Wallingford v. Zon-
ing Board of Appeals, 146 Conn. App. 567, 79 A.3d 115,
cert. denied, 310 Conn. 964, 83 A.3d 346 (2013), is a
particularly apt example of when the effects of a land
use agency’s decision are too speculative to render an
objecting party aggrieved for purposes of an appeal. In
Wallingford, the Appellate Court held that a town was
not aggrieved by a neighboring town zoning board’s
grant of a use variance, grounded in a ‘‘conceptual site
plan’’ that would have increased traffic congestion on
the town’s streets, because the town’s ‘‘concerns as to
traffic are, at present, premature’’ insofar as the site
plan had not yet been approved. Id., 576–77. The Appel-
late Court emphasized that ‘‘the plaintiff’s failure to
show how it is injured by the use variance itself is
what precludes a finding of aggrievement in this case.
Instead, the plaintiff claims aggrievement based on a
mere proposal, which at this moment in time has not
been approved, and is of no force or effect. Any injury
premised on an unapproved site plan at this juncture
remains speculative.’’ Id., 577.
In the present case, all that the commission’s May
15 decision did was approve the applicants’ planned
reduction of the size of the barn, an action that by itself
raised no possibility of harming the plaintiffs’ economic
interests stemming from their water view. The commis-
sion’s May 15 decision did not approve—or even con-
sider—the addition itself.14 Moreover, Robert Mayer’s
testimony before the commission, upon which the plain-
tiffs rely heavily, focused solely on the impact of the
contemplated addition on the plaintiffs’ property val-
ues, and was not directed to the proposed barn alter-
ations by themselves.15 This renders the effect of the
commission’s actual decision purely speculative with
respect to the plaintiffs’ property values and, therefore,
insufficient to establish classical aggrievement as to the
first appeal.
Finally, the alleged procedural irregularities and pub-
lic notice defects on the part of the commission simi-
larly do not render the plaintiffs aggrieved parties. It is
well settled that such procedural deficiencies, even if
they cause the loss of an opportunity to be heard, do
not by themselves establish classical aggrievement.16
See, e.g., Andross v. West Hartford, 285 Conn. 309, 341,
939 A.2d 1146 (2008); see also Edgewood Village, Inc.
v. Housing Authority, supra, 265 Conn. 293 (‘‘consistent
with the statutory requirement to provide general notice
to the community, the defective notice not only affected
the plaintiffs, but also every other resident of [the city],
who, for whatever reason, wished to be heard’’); Brouil-
lard v. Connecticut Siting Council, 52 Conn. Supp. 196,
206, 39 A.3d 1241 (2010) (plaintiff cannot challenge
‘‘procedural irregularities, constitutional infirmities,
and errors’’ without first establishing ‘‘classical
aggrievement, which would permit him to appeal’’),
aff’d, 133 Conn. App. 851, 38 A.3d 174, cert. denied, 304
Conn. 923, 41 A.3d 662 (2012). Accordingly, we conclude
that the trial court properly dismissed the first appeal
for lack of classical aggrievement.
B
The plaintiffs next claim that the trial court improp-
erly concluded that they had failed to plead facts suffi-
cient to demonstrate aggrievement with respect to the
second appeal, in which they challenged the commis-
sion’s October 16, 2012 determination that it lacked
jurisdiction over the proposed facade alteration to the
barn. In arguing that they adequately pleaded
aggrievement, the plaintiffs rely on the following factual
allegations: (1) their property abuts the applicants’
property; and (2) the commission’s defective process
and lax enforcement practices in considering the appli-
cation ultimately harmed their property values. In
response, the commission, relying heavily on Connecti-
cut Independent Utility Workers, Local 12924 v. Dept.
of Public Utility Control, 312 Conn. 265, 92 A.3d 247
(2014), and Wucik v. Planning & Zoning Commission,
113 Conn. App. 502, 967 A.2d 572 (2009), argues that
the trial court properly determined that the plaintiffs
failed to plead aggrievement in their administrative
appeal. The commission emphasizes that the second
appeal contains only allegations of substantive and pro-
cedural errors by the commission in considering the
second application, and that even those allegations
claiming improper public notice may be raised only by
an ‘‘ ‘aggrieved person’ ’’ under the extended statute of
limitations provided by § 8-8 (r).17 We agree with the
commission, and conclude that the trial court properly
determined that the plaintiffs failed to plead their
aggrievement adequately in the second appeal.
‘‘In order to prevail on the issue of aggrievement,
[t]he trial court must be satisfied, first, that the plaintiff
alleges facts which, if proven, would constitute
aggrievement as a matter of law, and, second, that the
plaintiff proves the truth of those factual allegations.
. . . The mere statement that the appellant is aggrieved,
without supporting allegations as to the particular
nature of the aggrievement, is insufficient.’’ (Internal
quotation marks omitted.) Bongiorno Supermarket,
Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542–43,
833 A.2d 883 (2003); see also Wucik v. Planning &
Zoning Commission, supra, 113 Conn. App. 508–509
(trial court properly dismissed zoning appeal because
failure to plead ‘‘any allegations as to the particular
nature of the aggrievement’’ rendered evidentiary hear-
ing on that point unnecessary [emphasis in original]).
‘‘Although the question of whether a party is aggrieved
presents a question of fact in cases involving disputed
facts . . . the question of whether the pleadings set
forth sufficient facts, if presumed true, to establish a
party’s aggrievement presents a question of law over
which we exercise plenary review.’’ (Internal quotation
marks omitted.) Handsome, Inc. v. Planning & Zoning
Commission, supra, 317 Conn. 527.
‘‘It is important to understand that the pleading
requirement is not merely a matter of form. Rather, it
provides an opportunity for the opposing party to
answer in denial, thereby placing the jurisdictional
fact[s] into dispute for the court’s resolution. Memo-
randa of law are not pleadings. Although this court
has made a few passing references to parties’ briefs or
memoranda in connection with the issue of
aggrievement, these references simply acknowledge
that such sources may provide a context from which
a reviewing court can determine which reasonable
inferences may be drawn from facts alleged in the plead-
ings.’’ Connecticut Independent Utility Workers, Local
12924 v. Dept. of Public Utility Control, supra, 312
Conn. 281.
We conclude that the trial court properly determined
that the plaintiffs did not adequately plead aggrievement
in the second appeal. We note first that the plaintiffs
pleaded that they are the ‘‘owners of a tract of land,
with a building and outbuilding thereon . . . which
abuts the property of [the applicants].’’ In the absence
of a basis for statutory aggrievement, ‘‘[t]he allegation,
even if proved, merely that the plaintiffs’ property lies in
close proximity to the area involved in the commission’s
action would not be enough’’ to establish their classical
aggrievement. Hughes v. Planning & Zoning Commis-
sion, 156 Conn. 505, 508, 242 A.2d 705 (1968); see, e.g.,
Edgewood Village, Inc. v. Housing Authority, supra,
265 Conn. 293.
The other facts alleged by the plaintiffs do not estab-
lish aggrievement in relation to the second appeal. First,
the plaintiffs alleged that, during the September 18, 2012
hearing before the commission, the applicants pre-
sented material with respect to the modification to the
barn, and two proposals for the rear addition; the com-
mission then advised the applicants that it ‘‘could not
approve multiple requests for the same application.’’
The plaintiffs then alleged that the commission heard
objections and received evidence with respect to the
new application, including that: (1) the applicants vio-
lated the commission’s procedural rules by submitting
a third application within the same year with respect
to the same building ‘‘already acted on by the [c]ommis-
sion without a significant change in circumstances’’; (2)
the applicants had failed to provide adequate supporting
materials for the application; and (3) ‘‘any argument that
[the commission] did not have jurisdiction regarding the
[ninety year old] historic barn was invalid since at least
one side of the building was admitted to be in the
view of the public.’’ The plaintiffs also alleged that the
commission improperly handled the second part of the
application, concerning the addition itself, which the
applicants then withdrew on the advice of the commis-
sion. The plaintiffs then claimed that, after the hearing
was continued to October 16, 2012, the commission
improperly disregarded evidence supporting its juris-
diction over the barn and the violation of its own proce-
dures.18 The plaintiffs also claimed that these
procedural errors constituted a due process violation.
Ultimately, the plaintiffs claimed that the commission
acted illegally and abused its discretion when it improp-
erly determined that the applicants’ proposed
‘‘ ‘[p]otemkin-style’ ’’ facade ‘‘met the spirit of [its]
design criteria and that [it] had ‘no jurisdiction’ regard-
ing the proposed alteration.’’
Having reviewed the facts pleaded in relation to the
second appeal, there is no allegation that the alteration
of the barn to create a new facade harmed any legal
interest of the plaintiffs. Although the plaintiffs allege
that the alteration of the barn would facilitate the con-
struction of an addition that is beyond the historic char-
acter of the district, they do not in any way claim that
this alteration would harm the plaintiffs’ interest in their
property. Moreover, to the extent that the plaintiffs rely
on the procedural irregularities and public notice issues
caused by the deficient allegations, there is no factual
allegation demonstrating how those procedural defi-
ciencies adversely affected the plaintiffs. In the absence
of a basis for statutory aggrievement, such public notice
deficiencies, as noted previously, even if they cause the
loss of an opportunity to be heard, do not by themselves
confer a basis for classical aggrievement. See, e.g.,
Andross v. West Hartford, supra, 285 Conn. 341; Edge-
wood Village, Inc. v. Housing Authority, supra, 265
Conn. 292–93; Brouillard v. Connecticut Siting Coun-
cil, supra, 52 Conn. Supp. 206. Given the plaintiffs’ fail-
ure to plead their aggrievement, we conclude that the
trial court properly dismissed the second appeal.19
The judgments are affirmed.
In this opinion the other justices concurred.
1
General Statutes § 8-8 provides in relevant part: ‘‘(a) As used in this
section:
‘‘(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board
and includes any officer, department, board or bureau of the municipality
charged with enforcement of any order, requirement or decision of the
board. In the case of a decision by a zoning commission, planning commis-
sion, combined planning and zoning commission or zoning board of appeals,
‘aggrieved person’ includes any person owning land in this state that abuts
or is within a radius of one hundred feet of any portion of the land involved
in the decision of the board.
‘‘(2) ‘Board’ means a municipal zoning commission, planning commission,
combined planning and zoning commission, zoning board of appeals or
other board or commission the decision of which may be appealed pursuant
to this section, or the chief elected official of a municipality, or such official’s
designee, in a hearing held pursuant to section 22a-250, whose decision may
be appealed.
‘‘(b) Except as provided in subsections (c), (d) and (r) of this section and
sections 7-147 and 7-147i, any person aggrieved by any decision of a board,
including a decision to approve or deny a site plan pursuant to subsection
(g) of section 8-3 or a special permit or special exception pursuant to section
8-3c, may take an appeal to the superior court for the judicial district in
which the municipality is located, notwithstanding any right to appeal to a
municipal zoning board of appeals under section 8-6. The appeal shall be
commenced by service of process in accordance with subsections (f) and
(g) of this section within fifteen days from the date that notice of the decision
was published as required by the general statutes. The appeal shall be
returned to court in the same manner and within the same period of time
as prescribed for civil actions brought to that court. . . .’’
Although § 8-8 has been amended by our legislature since the events
underlying the present appeal; see, e.g., Public Acts 2015, No. 15-85, § 2;
those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
2
General Statutes 7-147i provides: ‘‘Any person or persons severally or
jointly aggrieved by any decision of the historic district commission or of
any officer thereof may, within fifteen days from the date when such decision
was rendered, take an appeal to the superior court for the judicial district
in which such municipality is located, which appeal shall be made returnable
to such court in the same manner as that prescribed for other civil actions
brought to such court. Notice of such appeal shall be given by leaving a
true and attested copy thereof in the hands of or at the usual place of abode
of the chairman or clerk of the commission within twelve days before the
return day to which such appeal has been taken. Procedure upon such
appeal shall be the same as that defined in section 8-8.’’
3
Following the Appellate Court’s grants of certification to appeal pursuant
to § 8-8 (o), the plaintiffs filed separate appeals from the judgments of the
trial court to the Appellate Court, and we transferred the appeals to this
court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
4
We note that the applicants did not file a brief in these appeals. Counsel
for the applicants appeared at oral argument before this court and repre-
sented that they adopt the briefs and oral arguments of the commission.
References to the defendants hereinafter include Steven Young, Caroline
Young, and the commission.
5
In the trial court’s view, the case boiled down to the fact that ‘‘Robert
Mayer likes the barn on [the applicants’] lot and objected to the [commission]
allowing the [applicants] to remove less than ten feet of the barn’s length,
retaining the barn’s south-facing . . . facade.’’ The trial court held that the
plaintiffs’ reliance on the commission’s apparent failure to enforce its own
regulations did ‘‘not constitute more than a general interest . . . shared by
the entire community . . . .’’ The trial court emphasized that the ‘‘possibil-
ity—even the probability—that the [applicants] will use the lot coverage
reduction’’ to enlarge their home and adversely affect the plaintiffs’ water-
front view ‘‘is not a proper consideration for this court, any more than it
would have been for the [commission], in the absence of proof that the
[plaintiffs] have an easement or other legal right to restrict what the [appli-
cants] can do with their property within applicable land use laws and regu-
lations.’’
6
We note that § 8-8 (a) (2) defines ‘‘ ‘[b]oard’ ’’ as ‘‘a municipal zoning
commission, planning commission, combined planning and zoning commis-
sion, zoning board of appeals or other board or commission the decision
of which may be appealed pursuant to this section, or the chief elected
official of a municipality, or such official’s designee, in a hearing held pursu-
ant to section 22a-250, whose decision may be appealed.’’
7
Given our analysis of the plain language of §§ 7-147i and 8-8 (a), we
agree with the commission’s argument that Peeling v. Historic District
Commission, supra, 42 Conn. L. Rptr. 284, upon which the plaintiffs rely
heavily, is wrongly decided to the extent that it stands for the proposition
that ‘‘the last sentence of . . . § 7-147i . . . clearly states the legislature’s
intent to incorporate the statutory aggrievement standards of . . . § 8-8
and makes them applicable to appeals from the actions of historic district
commissions.’’ We also agree with the commission that this portion of the
decision in Peeling is dictum, in light of the fact that the objecting neighbors
in that case conceded that their real property was not located adjacent
to or within 100 feet of the property that had received a certificate of
appropriateness. Rather, the dispositive issue in Peeling was whether the
objecting neighbors were statutorily aggrieved simply by virtue of their
ownership of real property within the historic district—an argument rejected
by the Superior Court in that case. See id. (statutory scheme governing
historic districts ‘‘does not imply the creation any extraordinary rights’’ for
property owners within such districts).
8
In 2015, the legislature repealed subsection (a) of General Statutes (Rev.
to 2015) § 51-215a, which had provided for the official publication of Superior
Court decisions in the Connecticut Supplement following review for prece-
dential and public interest value. See Public Acts 2015, No. 15-85, § 10; see
also Connecticut Judicial Branch, Testimony of the Honorable Patrick L.
Carroll III (April 1, 2015) (assuring legislature that repeal ‘‘will not impact
publication because the Judicial Branch provides copies of the decisions
to outlets for publication’’ and ‘‘are also published electronically by private
services.’’), available at https://www.cga.ct.gov/2015/JUDdata/Tmy/2015SB
01033-R000401-Honarable%20Patrick%20L.%20Carroll%20-%20Judicial%20
Branch,%20State%20of%20Connecticut-TMY.PDF (last visited May 13, 2017).
We need not consider the extent to which the doctrine of legislative acquies-
cence remains applicable to Superior Court decisions issued subsequent to
the repeal of General Statutes (Rev. to 2015) § 51-215a (a), which are widely
available on commercial databases, but no longer are formally vetted by
the Reporter of Judicial Decisions.
9
The plaintiffs rely on certain portions of the legislative history of § 8-8 (a).
See 32 H.R. Proc., Pt. 25, 1989 Sess., pp. 8820–23, remarks of Representative
Robert F. Frankel (opposing amendment that would have restricted auto-
matic aggrievement with respect to site plan or subdivision approval because
of 1977 enactment of 100 foot rule to address ‘‘somewhat absurd’’
aggrievement disputes involving ‘‘house next door’’); id., p. 8825, remarks
of Representative Alex A. Knopp (‘‘isn’t it reasonable to assume if you
live next door to the subdivision that your property interests are being
affected somehow’’).
10
Given the policy considerations identified by the plaintiffs, it remains
the ‘‘prerogative’’ of the legislature ‘‘to modify or clarify’’ §§ 7-147i and 8-8
(a) ‘‘as it sees fit.’’ Commissioner of Public Safety v. Freedom of Information
Commission, 312 Conn. 513, 550, 93 A.3d 1142 (2014).
11
We disagree with the plaintiffs’ broader claim that the trial court improp-
erly refused to consider facts in the administrative record, in contravention
of State Library v. Freedom of Information Commission, supra, 240 Conn.
832, in which this court held that ‘‘a plaintiff may prove aggrievement by
relying on facts established in the record as a whole, including the administra-
tive record.’’ This claim is an apparent misunderstanding of the trial court’s
decision. Rather than refuse to consider the administrative record as a
matter of law, the trial court instead properly criticized the plaintiffs’ failure
to present their reliance upon it ‘‘during their case-in-chief on aggrievement
so that the defendants could cross-examine [the plaintiffs] about the facts.
Second, to point to the record in a general way and ask the court to find
aggrievement is improper because that would lighten the burden of proof
of aggrievement, if not shift the burden to the defendants to show why the
record fails to show aggrievement, and place the court in the position of
the plaintiffs’ agent, if not advocate, in sifting through the record for evidence
of aggrievement.’’ See also Connecticut Independent Utility Workers, Local
12924 v. Dept. of Public Utility Control, 312 Conn. 265, 281, 92 A.3d 247
(2014) (concluding that resort to administrative record for proof does not
obviate need to plead facts supporting aggrievement because doing so ‘‘pro-
vides an opportunity for the opposing party to answer in denial, thereby
placing the jurisdictional fact[s] into dispute for the court’s resolution,’’ and
emphasizing that ‘‘we have never suggested that the record can be mined
for evidence to cure deficient pleadings’’). Moreover, notwithstanding its
criticisms of these apparent pleading lapses, the trial court reviewed the
record, and discussed at length why the evidence of harm therein was too
speculative to establish aggrievement.
Thus, we need not consider the commission’s contention that State
Library is restricted to Uniform Administrative Procedure Act appeals; see
General Statutes § 4-183; and does not apply to land use appeals. But see
9A R. Fuller, Connecticut Land Use Law and Practice (4th Ed. 2015), § 32.3,
pp. 140–41 (citing Superior Court decisions extending State Library to allow
plaintiffs to rely on administrative record to establish aggrievement in land
use appeals under § 8-8 [b]).
12
We acknowledge that it is well settled that, as property owner, Robert
Mayer was ‘‘qualified to testify as to [his] personal opinion regarding the
value, or diminution in value, of [his] properties. . . . This rule reflects
. . . the common experience that an owner is familiar with her property
and knows what it is worth.’’ (Citations omitted; internal quotation marks
omitted.) Pestey v. Cushman, 259 Conn. 345, 364, 788 A.2d 496 (2002). The
trial court was not, however, required to credit this testimony, particularly
given its basis in the hearsay statements of unnamed real estate profession-
als, as set forth in footnote 15 of this opinion. See McCahill v. Town &
Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981).
13
We note that this assumption appears to be contrary to established
Connecticut law, under which ‘‘property owners have no right to an unob-
structed view from structures built on adjacent property. The only exception
to this is where there is an express statutory provision or there is a contract
or restrictive covenant protecting the private right to a view or vista.’’
(Footnotes omitted.) 9 R. Fuller, Land Use Law and Practice (4th Ed. 2015)
§ 4.48 p. 186; accord General Statutes § 47-25 (‘‘[n]o occupant of real estate
may acquire, by adverse occupation, the right to keep, sustain or enjoy any
window or light, so as to prevent the owner of adjoining premises from
erecting and maintaining any building thereon’’); see Puorto v. Chieppa, 78
Conn. 401, 403–404, 62 A. 664 (1905); see also, e.g., New Haven v. United
Illuminating Co., 168 Conn. 478, 495, 362 A.2d 785 (1975) (rejecting due
process claim because obstruction of views was not property interest
affected by approval of construction of electric transmission line); Irwin
v. Planning & Zoning Commission, 45 Conn. App. 89, 98, 694 A.2d 809
(1997) (‘‘[t]hat the plaintiff’s subdivision would alter slightly the [abutter’s]
view is not a significant enough reason to deny the permit’’), rev’d on other
grounds, 244 Conn. 619, 711 A.2d 675 (1998); Glendenning v. Conservation
Commission, 12 Conn. App. 47, 55–56, 529 A.2d 727 (concluding that trial
court improperly failed to consider claimed environmental impact of devel-
opment when it found that plaintiffs were not aggrieved based solely on its
conclusion that ‘‘ ‘the mere construction of a building which might partially
interfere with the view of neighboring landowners significantly depreciates
the value of their properties [is] highly speculative’ ’’), cert. dismissed, 205
Conn. 802, 531 A.2d 936 (1987).
14
We acknowledge that the plaintiffs’ appendix includes architectural
drawings of a proposed addition that the applicants filed with the commis-
sion in connection with the May application that is the subject of the first
appeal. Nevertheless, the challenged decision did not approve—or even
consider—the addition itself.
15
Robert Mayer testified before the commission that the applicants’ neigh-
bors ‘‘who have the view of the Mystic Seaport . . . are not in favor of [the
application] which is why they were not on [the applicants’] list of people’’
from whom they sought approval before coming to the commission. After
arguing that the ‘‘[nine] foot reduction in the existing barn which is currently
an [eighteen] foot by [thirteen] foot building . . . does not appear to meet
the spirit of a barn renovation,’’ Robert Mayer emphasized his admiration
for the barn, and argued that its alteration would be ‘‘totally against what
the [Mystic River] [h]istoric [d]istrict stands for . . . .’’ Robert Mayer argued
that the alterations to the barn were proposed by the applicants ‘‘to get
around the appeal that we are going to be making to Superior Court’’ from
the zoning commission’s separate decision to grant a variance with respect
to the lot area, the lack of which would have required the applicants to reduce
the size of the planned addition. Robert Mayer then asked the commission to
condition any reduction in the size of the historic barn on ‘‘the understanding
that it cannot be merely to reduce the size of the barn for the purpose of
gaining additional [floor area ratio]. As abutting property owners, that’s us,
we do have a concern about our property values and the adverse effect this
application may have on our property.’’
In responding to questions by members of the commission, Robert Mayer
agreed that his ‘‘purpose of blocking the cutting down of the barn is to
prevent [the applicants] from making an addition to the house.’’ Although
stating that ‘‘we [like] the barn much better than we like [the applicants’]
house,’’ Robert Mayer agreed that the ‘‘reason we don’t like [the addition],
and I know I’m going out on a limb because I’m always told never to mention
view,’’ is that the addition is ‘‘out of . . . [p]roportion to the lot size [the
applicants have] and it blocks, and . . . we already have a situation—I’m
going to mention view because his home with his porch and his Japanese
maple already blocks our view in the front, now the addition that he is
planning especially with the top floors—the attic floor and the second floor,
will block—I know nobody cares about this but us, but it blocks all of our
views from the living room, from my office, and from our bedroom. What’s
happening with the barn is going to block our view from the dining room
so that pretty much finishes all of our unobstructed views in our home.
Everyone who we—all the professionals that we have asked have said that
this is going to make a difference, in our home only, of anywhere from . . .
one third, I mean, 20 [percent] to one third of the value of our home.’’
16
We further disagree with the plaintiffs’ claim that the trial court was
obligated to consider its claims that the inadequate notice rendered the
commission’s acts jurisdictionally defective and, therefore, void. First, this
court’s decision in Edgewood Village, Inc. v. Housing Authority, supra, 265
Conn. 293, squarely forecloses this claim. Consistent with Edgewood Village,
Inc., none of the older authorities cited by the plaintiffs stand for the proposi-
tion that a party lacking aggrievement may bring an administrative appeal
to challenge the subject matter jurisdiction of a land use agency. See Koepke
v. Zoning Board of Appeals, 223 Conn. 171, 176–77, 610 A.2d 1301 (1992)
(improper notice deprived zoning board of appeals of jurisdiction to revoke
permit zoning officer had previously issued to plaintiff); Lauer v. Zoning
Commission, 220 Conn. 455, 465, 600 A.2d 310 (1991) (rejecting claim,
brought by aggrieved neighbor, that failure to give notice to adjoining munici-
pality under General Statutes [Rev. to 1989] § 8-3h was subject matter juris-
dictional defect); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41,
44–45, 301 A.2d 244 (1972) (stating in zoning case brought by abutting
landowner, without specifically considering issue of aggrievement, that
newspaper notice requirement under General Statutes § 8-3 is jurisdictional);
Nazarko v. Zoning Commission, 50 Conn. App. 517, 519–20, 717 A.2d 853
(holding that improper notice deprived zoning commission of jurisdiction
in appeal brought by abutting landowner), cert. denied, 247 Conn. 941, 723
A.2d 318 (1998).
17
Turning to the proof, the commission reiterates its arguments made in
connection with the first appeal, namely, that Robert Mayer’s testimony
before the commission; see footnote 15 of this opinion; did not establish
classical aggrievement because the plaintiffs did not claim direct harm from
the alterations to the barn, but only from the speculative addition.
18
The plaintiffs alleged that the applicants’ plans to ‘‘demolish or severely
alter the historic barn . . . which was within the jurisdiction of the [commis-
sion], and that this was merely an effort to increase the applicants’ ability
to gain available lot coverage that would be allocated to a proposed rear
addition, i.e., a [nonhistoric] basis to alter a historic building within the
jurisdiction of the [commission] . . . .’’
19
As the commission argues, even if we look beyond the inadequate
pleading and consider the proof in the trial and administrative records, for
the reasons discussed in part II A of this opinion, we nevertheless conclude
that the plaintiffs failed to prove their aggrievement.