LAVINE, J.
The plaintiff, the town of Wallingford, appeals from the judgment of the trial court dismissing its zoning appeal from the
The following facts and procedural history are relevant to this appeal. In 2008, the defendant Mark Development, LLC (developer), applied for a use variance from the board for a 48.8 acre parcel of land located at 850 Murdock Avenue in Meriden (property). The property is bounded on the south by Wallingford. The property is zoned as a regional development district, wherein permissible uses are limited to conference center hotels, executive offices, research and development facilities, and distribution centers associated with executive offices. The developer, seeking the use variance in order to construct a used car lot on the property, submitted its application for the variance on August 14, 2008. The application included a conceptual site plan that made reference to a traffic plan that would ultimately make Northrop Road in Wallingford the primary access point to the property. A hearing before the board occurred on September 2, 2008, at which point Linda Bush, the Wallingford town planner, raised the plaintiff's concern that the conceptual site plan directs too much traffic into Wallingford.
Thereafter, the city of Meriden, the Meriden Planning Commission and its director of planning, Dominick Caruso (Caruso plaintiffs), appealed to the trial court. In that action, the Caruso plaintiffs alleged (1) that the use variance was illegal, arbitrary, an abuse of discretion, and ultra vires because a member of the board had a conflict of interest requiring his recusal, and (2) that the decision of the board was not supported by the record. See Caruso v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-08-4033705, 2012 WL 3870516 (August 9, 2012) (54 Conn L. Rptr. 505). The plaintiff also appealed, claiming that the use variance was not supported by the record.
The board filed a motion to dismiss, asserting that neither the Caruso plaintiffs nor the plaintiff in the present case were aggrieved by its decision. The court denied the motion to dismiss as to the Caruso plaintiffs, but granted the motion as to the plaintiff in the present case. The court found that the plaintiff in the present case was neither classically nor statutorily aggrieved by the board's decision.
The board filed a motion to reargue, requesting that the court "further clarify what it meant by `for further proceedings.'" The board also requested that, because the court had already determined the merits of the board's decision on the application and two alternate members of the board could read the transcripts of the record, "further proceedings" be limited to a new vote on the existing record by a reconstituted board instead of an entirely new hearing. The court granted the motion on September 10, 2012, ordering that no new evidence be introduced and that the board render a new decision pursuant to a review of the existing record by alternate members of the board.
Subsequently, the developer filed a petition for certification to appeal the trial court's decision in Caruso on August 30, 2012, seeking review of the trial court's decision only on the issue of conflict. The Caruso plaintiffs also filed a cross petition on September 20, 2012, seeking review of (1) the trial court's ruling on the merits, and (2) its decision to address the merits while concurrently finding that the vote by a conflicted board member required that the application be remanded to the board.
The plaintiff filed its own certified appeal, in the present case, claiming that the trial court erred when it granted the board's motion to dismiss. Argument before this court in the present appeal was first heard on January 3, 2013, while the petitions for the Caruso appeal were pending. At that time, this panel questioned whether the present appeal was properly before us. Following oral argument, we ordered the parties to brief the issue as to whether the present appeal was justiciable given the trial court's decision in Caruso and the pendency of the petitions to appeal in that case. The petitions for certification in the Caruso appeal were granted on January 16, 2013.
Before we can address the merits of the plaintiff's claims, we must determine whether we have subject matter jurisdiction to hear this appeal. Accordingly, at the threshold of this appeal, we are
"The doctrine of mootness is rooted in the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue." State v. McElveen, 261 Conn. 198, 204, 802 A.2d 74 (2002). Our Supreme Court has enunciated a four part test in order to determine whether a matter is justiciable. "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Board of Education v. Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001). Furthermore, "[a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... [Thus] [w]hen, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001).
In the present matter, the board argues that this court cannot grant practical relief. The board contends that even if this court were to decide that the plaintiff was aggrieved by the board's decision, because the merits of the use variance were already adjudicated by the trial court, this court cannot grant practical relief. This argument is not persuasive. As one of the issues in the Caruso appeal relates to the merits of the use variance, the plaintiff would be able to obtain relief if this court were to find the plaintiff aggrieved. Under that scenario, the plaintiff would be entitled to join in the Caruso appeal as to the merits of the use variance. In short, if plaintiff's claim on appeal were dismissed as moot, it would lose its opportunity to potentially litigate the merits of the use variance that is currently at issue in Caruso. See, e.g., State v. T.D., 286 Conn. 353, 366-67, 944 A.2d 288 (2008) (controversy kept alive because of contemporaneous appeals). Accordingly, the plaintiff's appeal is not moot.
We now turn to the primary issue in this appeal, that is, whether the trial court erred in dismissing the plaintiff's appeal. On appeal, the plaintiff argues that the court improperly determined that it was not aggrieved by board's decision granting the use variance because (1) the plaintiff was classically aggrieved by the possibility of increased traffic on its roads, and (2) it was statutorily aggrieved as a "municipality concerned." We are not persuaded by the plaintiff's arguments, and therefore, affirm the judgment of the trial court.
We begin by setting forth the standard of review and principles of law that govern our analysis. "Because a determination regarding the trial court's subject
"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. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest.... 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, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Citations omitted.) Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d.167 (2001).
"Finally, as to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.... A fair reading of relevant decisional law makes it clear, nevertheless, that proof of a possibility of specific harm is not the same as mere speculation regarding harm.... Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement." (Citations omitted; internal quotation marks omitted.) Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 197-98, 895 A.2d 286 (2006).
On appeal, the plaintiff maintains that it was aggrieved by the board's action both classically and statutorily. We first consider classical aggrievement.
The plaintiff's principal argument is that the granting of the use variance will cause it harm by increasing traffic on its roadways. This increased traffic is anticipated on the basis of the conceptual site plan that was presented by the developer to the board. The conceptual plan featured a traffic plan that ultimately funneled the bulk of truck traffic through the plaintiff's streets and away from Meriden. We disagree with the plaintiff that, at this juncture, it is aggrieved by the use variance.
The trial court considered the two part classical aggrievement inquiry. First, it found that "traffic hazards and traffic congestions
Upon our examination of the record, we cannot conclude that the court's conclusions were unsupported by the facts of this case or otherwise violate law. Rather, its judgment appears to be well supported and manifestly correct. Put simply, the plaintiff's concerns as to traffic are, at present, premature. As the origin of the plaintiff's claimed aggrievement is the proposed site plan, and given that the board lacked the authority to approve a site plan in the application for a use variance, the issue of where the traffic would be directed was not formally decided upon.
Any injury premised on an unapproved site plan at this juncture remains speculative. Our Supreme Court, in addressing similar land use regulation, has required more than mere speculation, requiring that, "a party seeking to invalidate a regulation is required to present sufficient facts to the court that demonstrate the regulation's adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven." (Emphasis added.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 190, 779 A.2d 134 (2001); see also Goldfisher v. Connecticut Siting Council, supra, 95 Conn.App. at 198, 895 A.2d 286 ("[a]lthough one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement").
The plaintiff argues that because the use variance was granted on the basis of the board's consideration of the conceptual site plan and the "public safety factors" pursuant to General Statutes § 8-6,
The plaintiff next claims that the trial court erred by finding it was not statutorily aggrieved under General Statutes § 8-8 pursuant to the "municipality concerned" doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
"Q. So, Ms. Bush, until a site plan is approved we really won't know the number of trips that will be generated will we?
"A. No."