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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 (commission), 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 operated 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 excavation 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, Handsome 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 actually 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 hereinafter, both of these conclusions are demonstrably incorrect: 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 plausible 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 majority 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] cannot 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 conclusively 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 permit extension was unlawful in certain important

respects. Because Handsome was aggrieved by the commission’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 therefore respectfully dissent.3

The facts relevant to the trial court’s determination

that Handsome was aggrieved by the commission’s decision 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 excavation 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 agreement, 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 foreclosure 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 equipment 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 September 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 October and November, 2010, Handsome submitted written

requests to the commission seeking its approval of the

permit extension in accordance with the court’s decision. The commission finally addressed the matter at

its meeting on May 5, 2011. Afterfirst 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 retroactive 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 Handsome 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 Drilling afforded Handsome standing to maintain the present 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 plaintiffs 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 prejudice to raising . . . the issue of aggrievement’’ at a

later date.

After an evidentiary hearing on July 26, 2012, following 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 foreclosure 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 payments 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 Handsome 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 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.’’

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. HartfordRoman 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; Moutinho 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 merits of the appeal. The court sustained the appeal, concluding 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 prerequisites 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 quotation 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 successfully establish that this specific personal and legal interest has been specially and injuriously affected by the

[challenged action].’’ (Internal quotation marks omitted.) 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. Planning & 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; internal 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 possess 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 quotation 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 leasehold 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 applications to build the asphalt plant. Id., 662–63. After the

planning and zoning commission denied the applications, Moutinho appealed to the trial court, which concluded 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, therefore, 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 agreement, establish that the developer has a specific, personal 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 property 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 concluded 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. DiBonaventura v. Zoning Board of Appeals, supra, 370–72,

376–77. Although DiBonaventura had his father’s consent to use the property for the planned car dealership,

he had no ownership or leasehold interest in the property. 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 DiBonaventura’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 enforceable 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, Connecticut 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 & Zoning 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) (corporation 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 permission and had oral agreement to enter into lease if challenge to cease and desist order was successful was

aggrieved). These cases underscore the oft cited principle that ‘‘[t]he concept of standing as presented . . .

by the question of aggrievement is a practical and functional 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 decision. 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 property 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
clearerthat 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 establishing 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. Zoning 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 Southbury 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 controversy’’ 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 significance 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 alternative ground for aggrievement.’’ Footnote 7 of the majority 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 aggrievement determination. Because the commission, as the

appellant, is challenging that determination, we necessarily 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 adequately 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 plaintiffs have not adequately briefed the issue of why Handsome’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 demonstrating that the trial court’s conclusion regarding aggrievement 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 determination, 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 agreement. Finally, in reaching its conclusion, the courtrelied

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 sufficient 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 merits 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 aggrievement, 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 premises 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 Handsome’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 plaintiffs’ counsel addressed the aggrievement issue extensively in response to questioning from panel members.

In his detailed responses, counsel explained, once

again, that property ownership is not a necessary prerequisite to aggrievement and, further, that Handsome

was aggrieved by virtue of its agreement with MD Drilling 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’

subsequentreliance 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 consideration of the agreement for purposes of its aggrievement determination.10

It bears emphasis, moreover, that the plaintiffs consistently 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 aggrievement. 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 plaintiffs 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 decision in Moutinho, arguing, inter alia, that ‘‘[t]he [commission’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 demonstrate 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 standing to maintain the present action as a nonowner. As

the foregoing amply demonstrates, the majority is incorrect in asserting that the commission is entitled to reversal 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 Handsome was aggrieved as the owner of the property, it

refuses to address Handsome’s argument that its interest 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 ownership interest in the property.’’ Text accompanying footnote 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 additional conditions imposed by the commission in connection 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 decision to impose those additional conditions, and Handsome therefore was clearly aggrieved by the commission’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 orfactual 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 challenge it in court. Handsome most certainly has ‘‘a personal 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 commission’s decision, and, therefore, this court is obligated to consider and decide the merits of the commission’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 Handsome 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. Planning & 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 Priorthereto, 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 memorandum 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 Handsome 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 courtrecord 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 agreement 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 abandoned or waived this claim by failing to raise it again following the evidentiary 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 substantiate the standing claim that they had raised in their objection to the commission’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 Handsome’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 Handsome 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 decision 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 majority’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 extension 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.