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Fuller v. Planning and Zoning Com'n of Town of New Hartford

Court of Appeals of Connecticut

May 1, 1990


Argued Oct. 31, 1989.

Page 1223

Douglas W. McCallum, Unionville, for appellant (plaintiff Peter C. Kores).

Maureen E. Donahue, with whom, on the brief, was John W. Pickard, Winsted, for appellee (defendant).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

[21 Conn.App. 341] FOTI, Judge.

The plaintiff, Peter C. Kores, appeals from the judgment of the trial court dismissing his appeal for lack of aggrievement. He claims that the court erred in finding that he was not a statutorily aggrieved party and hence could not pursue a zoning appeal.

The New Hartford planning and zoning commission granted a special exception for the operation of a consulting business in a rented residence located at the corner of West Hill and Burwell Roads in New Hartford, [21 Conn.App. 342] and owned by Susan E. Manizza. [1] The original plaintiff, Julia M. Fuller, owned a residence on Burwell Road across the street from the subject property. Fuller, relying on General Statutes § 8-8, [2] alleged that she was statutorily aggrieved by the commission's decision because her property either abutted or was within a radius

Page 1224

of 100 feet of the property. After commencing this action, Fuller conveyed all of her property on Burwell Road to Peter C. Kores, who was later substituted as a party plaintiff. [3] The defendant claims that the trial court erred in granting the plaintiff's motion to substitute Kores as plaintiff.

The trial court, after holding an evidentiary hearing to determine whether Kores was statutorily aggrieved by the decision of the commission, concluded that the evidence presented was insufficient to establish statutory aggrievement under the provisions of General Statutes § 8-8.

A trial court's finding that a plaintiff is not aggrieved by a commission's action will not be disturbed on appeal unless the subordinate facts found do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). No person is [21 Conn.App. 343] entitled to set the mechanics of a zoning appeal in motion except to redress an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 495, 400 A.2d 726 (1978). "[T]he plaintiffs were required to plead and prove some injury in accordance with our rule on aggrievement." Id. Unless the plaintiff alleges and proves aggrievement, his case must be dismissed. Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987). Aggrievement presents a question of fact for the trial court. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).

The plaintiff asserts that he is a statutorily aggrieved party because the evidence presented to the court was sufficient to establish that his property is either within the required 100 feet of the Manizza property, or that it abuts that property. We agree.

The evidence presented to the trial court consisted of the testimony of Kores and documentary evidence. The documents presented included two deeds, [4] two assessment records and an assessor's map that was not drawn to scale. Collectively this evidence clearly establishes that Kores is the owner of property located on the north side of Burwell Road, that he purchased this parcel from Fuller, and that the Kores property is located directly across the street from the Manizza property.

In reviewing Kores' claim that the properties in question are within 100 feet of each other, we note that although Kores could not testify with absolute certainty as to the exact width of Burwell Road, his testimony that the road is fifty feet wide is based upon his experience as a developer who deals with engineering [21 Conn.App. 344] reports, plot plans and other such pertinent material. The record is, therefore, not devoid of any competent evidence affirmatively showing that the plaintiff's land was within a radius of 100 feet of the Manizza property. Our Supreme Court has concluded "that the legislature presumed as a matter of common knowledge that persons owning property within close proximity to a projected zoning action would be sufficiently affected by the decision of a zoning agency to be entitled to appeal that decision to court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land involved would not unduly enlarge the class of those entitled to appeal such a decision." Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 669, 560 A.2d 975 (1989). [5]

Page 1225

We do not seek to usurp the trial court's function as factfinder; Bakelaar v. West Haven, supra; nor do we indicate that aggrievement may be proven by facts based on generalizations; see Walls v. Planning & Zoning Commission, supra. It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn.App. 804, 805, 543 A.2d 287 (1988). In the present case, the plaintiff, relying upon statutory aggrievement, sustained the burden of proving the fact of aggrievement. The testimony and evidence presented indicate that Burwell Road is not a multilane divided superhighway, but rather an undivided two lane road approximately twenty feet of [21 Conn.App. 345] which is paved, with no wide shoulders separating the properties from the road.

Since we conclude that the plaintiff established statutory aggrievement by showing that his property was within a radius of 100 feet of the Manizza property, it is unnecessary to review his claim that he also established statutory aggrievement by proof that the properties abutted at the center of Burwell Road by ...

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