547 N Avenue Bridgeport Realty, LLC v. Planning and Zoning Commission of City of Bridgeport, FBTCV186074681S

• Decision Date: 04 April 2019
• Docket Number: FBTCV186074681S
• Court: Connecticut Superior Court
• Parties: 547 N Avenue Bridgeport Realty, LLC v. Planning and Zoning Commission of the City of Bridgeport

547 N Avenue Bridgeport Realty, LLC v. Planning and Zoning Commission of the City of Bridgeport

No. FBTCV186074681S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

April 4, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Welch, Thomas J., J.

MEMORANDUM OF DECISION

WELCH J.

The plaintiff, 547 N Avenue Bridgeport Realty, LLC, appeals the action of the Planning and Zoning Commission of the City of Bridgeport (commission) approving a special permit and site plan regarding property located at 580-582 North Avenue Bridgeport, Connecticut, which provides for the construction of a six-pump gas station with a 2, 094-square-foot convenience store.

The plaintiff contends that the petition failed to satisfy all of the requirements for special permits pursuant to Connecticut General Statutes and the Zoning and Subdivision Regulations of the City of Bridgeport (regulations). Further, the plaintiff submits that the proceedings before the commission involved irregularities that violate statutory, regulatory and constitutional due process requirements, rendering the proceedings fundamentally unfair. As a result, the plaintiff asserts that the commission’s decision was illegal arbitrary, and in abuse of the commission’s lawful discretion.

I FACTS

The defendant 580 North Avenue, LLC is the contract purchaser of property located at 580-582 North Avenue, Bridgeport, CT. The property is currently owned by Rose and Fern Co., LLC. The property is located in on Industrial— Light zone upon which, until recently, a used car dealership was operated. (ROR, exh. 1.)

The plaintiff 547 N Avenue Bridgeport Realty, LLC is the owner of property located at 547 North Avenue, Bridgeport, CT, which is across the street from the property that is the subject of this petition and upon which a gas station is currently operated. (ROR, exh. 5.)

On or about October 27, 2017, 580 North Avenue, LLC filed a petition with the commission requesting approval for a special permit pursuant to § 14-4 of the Bridgeport zoning regulations and a site plan pursuant to § 14-2 in order to construct a six-pump gas station with 2, 094 square foot convenience store. (ROR, exh. 1.)

The commission scheduled a public hearing on the petition to be held on November 27, 2017. In accordance with General Statutes § 8-7d, notice of the public hearing was published in the Connecticut Post on November 16, 2017 and November 23, 2017. (ROR, exh. 19.)

A public hearing on the petition was held on November 27, 2017 at which time Attorney Charles Willinger presented the application on behalf of the petitioner, 580 North Avenue, LLC. The petitioner introduced various exhibits to support the petition and offered testimony of the principal of the petitioner, Eddie Jamal. Attorney Willinger indicated that the petition satisfied all of the requirements of the regulations. (ROR, exh. 32, 134-48.) At the conclusion of Attorney Willinger’s presentation, Attorney Joel Green, on behalf of the plaintiff, addressed the commission in opposition to the petition. Attorney Green commented that the proposed plan failed to include a utility plan as required by § 14-2-3c of the regulations, the site plan failed to depict the proposed underground storage tanks, and that the petition failed to include a traffic impact study. (ROR, exh. 32, p. 149-55.)

At the conclusion of Attorney Green’s comments, Attorney Willinger offered rebuttal testimony, which concluded with the following discussion between Attorney Willinger and commission members:

Atty. Willinger: As I said, this— plan has really been approved by the Zoning staff, the Building Department, ah, the Traffic Engineer, City Engineer and, ah, the City Planner. I don’t know what else we can do as far as plans. If you— if the members of this Commission are saying that you want us to show you a plan with the size of the tanks, if that’s what you really want, as opposed to saying approval subject to the engineer’s requirements, we’ll do that. I mean, if that what you— if that’s what you really want—

Mr. Riley: What we want is the complete utility plan. We have to continue. Okay.

Atty. Willinger So, we’ll continue this, ah, and we’ll introduce that plan, ah next time, which I understand—

Mr. Riley: We will continue and we will consider—

Ms. Freddino: January.

Mr. Riley:— that one matter and only one matter. We’ll take no other testimony. It’s just for a complete utility plan. After that, the matter will be closed.

Mr. Riley: All right. So, on our January meeting. Unfortunately, it’ll have to wait to January because we don’t have a December meeting. We will just introduce the utility plan and then the matter will be closed.

Atty. Willinger: Thank you, Mr. Chairman.

Mr. Riley: Ah, is there any other opposition?

Mr. Morton: No, it’s rebuttal.

Mr. Riley: Oh, that’s right. It’s rebuttal. I’m sorry. Thank you, Mr. Morton.

Ms. Freddino: Okay.

Mr. Riley: All right, the matter is closed. Thank you.

Ms. Freddino: The next item on the agenda is 17-58—

Mr. Riley: Oh, wait. That matter is continued. I’m sorry. It’s continued. It’s continued to January.

Atty. Willinger: Thank you.

Ms. Freddino: The next item on the agenda is 17-58: 546 East Main Street.

(ROR, exh. 32, p. 160-63.)

At the public hearing held on January 29, 2018, the chairman of the commission stated relative to the petition: "All right. This is continued specifically for one reason and one reason only and that was for the submission of the ... the utility plan, which we have received." (ROR exh. 32, p. 167.) Thereafter, Attorney Willinger presented the proposed utility plan which was dated January 29, 2018. In addition, he provided evidence with regards to the location of the storage tanks and a design for a delivery truck turning path. He also discussed a report from Catherine Johnson, the City of Bridgeport Design Review Coordinator, dated November 20, 2017 and submitted into evidence correspondence from the petitioner’s engineer. (ROR exh. 32, 168-81.) At the conclusion of Attorney Willinger’s presentation, Attorney Green again spoke in opposition to the petition indicating that certain documents were submitted at the public hearing which he had no opportunity to review. Further, Attorney Green presented exhibits questioning the turning path of delivery trucks and indicated that the proposed plans failed to include all of the requirements set forth by the regulations. Attorney Green further requested that a traffic impact study should be completed. At the conclusion of Attorney Green’s presentation he stated, "I would ask and urge the commission to deny this application." (ROR exh. 32, p. 181-82.) In response, Attorney Willinger argued that there was no requirement for a traffic impact study and offered the testimony of the project architect, Marcos Reinheimer with Guedes Associates, to describe and explain the truck turning pattern. Attorney Willinger also offered evidence that the deliveries would be between the hours of 3 AM and 5 PM and therefore would not cause any issue with regards to traffic. At the conclusion of the presentation of the petition and in response to Attorney Green’s comments, the following discussion ensued:

Atty. Willinger: And— in our situation, you’ll notice that even— even at 3 in the morning, we still have an additional— on the far right side of the map one, two, three, four additional spots. So, it’s not going to block all the— all the parking, even if there is capacity. Okay. I think that answers that. Any other questions from the Commissioners? Okay. Then thank you very much.

Mr. Riley: Okay. The matter is closed.

Ms. Freddion: It’s tight, but it is tight for— [inaudible]

Mr. Riley: Now we are on to Swedish Singing.

Ms. Freddino: Okay. The next item on the agenda is C-3 (17-61).

(ROR exh. 32, p. 181-93.)

At the conclusion of the public hearing, the parties agree that the chairman of the commission, Chairman Riley, banged his gavel when stating the matter was closed. During oral argument, the plaintiff and the defendants agreed that the public hearing was closed.

The agenda for the commission meeting of January 29, 2017 consisted of nine items; the petitioner’s application was number two on the agenda. The agenda does not indicate that items on the agenda will be discussed a second time. The minutes of said meeting reflect that after the public hearing was closed, the commission discussed six additional items on the agenda. (Supplemental ROR p. 14-21.)

Thereafter, the commission conducted what is referred to in the minutes as a "decision session." The agenda is void of any mention of a "decision session." During the decision session, the commission discussed the petitioner’s application and expressed concerns with regards to the turning radius for delivery vehicles and the impact on traffic. The following discussion took place:

Ms. Freddino: And, ah, North Avenue.

Mr. Riley: Now we’re on North Avenue. The, uhm, we want to continue this. Ah, there is still— this is the, ah, the conversation of a convenience store to a gas station? Or. a used—

Mr. Buckley: It was a used car lot—

Mr. Riley: A used car lot. Mr. Buckley: to a gas station with a convenience store.

Mr. Riley: It was a used car lot to a gas station with a convenience store—

Mr. Buckley: and something else.

Mr. Riley: And— [inaudible] okay

Ms. Freddino: Yeah. There’s gonna be another little building there. Personally, I don’t like it.

Mr. Morton: I still don’t.

Ms. Freddino: I have— I have concerns—

Mr. Morton: I think— I think we need to see—

Ms. Freddino: about how— I don’t know—

Mr. Morton: Yeah.

Mr. Riley: about how that truck is going to turn.

Ms. Freddino: Yeah, it’s gonna go— I— I have concerns about that.

Mr.

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