78 Olive St. Partners, LLC v. New Haven City Plan Commission

• Decision Date: 20 March 2017
• Docket Number: CV166065072S
• Court: Connecticut Superior Court
• Parties: 78 Olive Street Partners, LLC v. New Haven City Plan Commission et al

78 Olive Street Partners, LLC v. New Haven City Plan Commission et al

No. CV166065072S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

March 20, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Thomas J. Corradino, Judge Trial Referee.

In a May 12, 2016 decision by this court, the court addressed on appeal whether the New Haven City Plan Commission's approval of a Site Plan Application for property at 630 Chapel Street in New Haven violated the zoning ordinances of the city. Section 60(e) of the city ordinances sets forth thirty factors that must be taken into account for site plan approval. The plaintiff argued in its appeal that the plan submitted did not comply with three subsections of Section 60(e)--§ § 60(e)(7), 60(e)(3), and 60(e)(8). The court rejected the argument made that there was a failure to comply with § 60(e)(7) and § 60(e)(3). However, the court concluded that Section 60(e)(8) was not complied with. That subsection reads as follows: " (8) Post-development runoff rates and volumes shall not exceed pre-development rates and volumes for various storm events. Storm runoff rates and volumes shall be controlled by infiltration and on-site detention systems designed by a professional engineer licensed in the State of Connecticut except where detaining such flow will affect upstream flow rates under various storm conditions." The court concluded that the record reflected that reports submitted by Spinnaker consultants admitted that there would be " a minor increase in runoff volume from the site . . ." as a result of the proposed development. This would not comport with the " shall not exceed" language of Section 60(e)(8). In light of that the last paragraph of the opinion stated: " The court will not reverse the decision of the Commission in its entirety especially in light of the de minimus nature of the increase in runoff volume. However, pursuant to Section 8-8(e)^[1] of the general statutes it will modify the decision of the Commission for the purpose of complying with the 'no net increase' language in Section 60(e)(8) of the New Haven Zoning Ordinance. This is the only respect in which the Commission's decision is revised, in all other respects it is upheld."

In the plaintiff's Verified Appeal Complaint of September 21 2016 the plaintiff alleges revised plans and drawings were submitted by Milone & MacBroom on behalf of the defendant Spinnaker to address the remand issue, the latest materials being submitted on August 12, 2016. At the August 24, 2016 Commission meeting counsel for the plaintiff submitted a Verified Petition For Intervention under § 22a-19 of the general statutes and a report by its expert that the revised plans do not ensure compliance with section 60(e)(8) of the city ordinance in that they " do not result in no net increase in storm water runoff." Counsel also requested that the plaintiff's retained expert was prepared to testify as to this conclusion at the hearing. The Commission however, refused to take any action on the submission and request. On September 13, 2016 counsel for the city informed the plaintiff that the City Plan Staff had approved Spinnaker's revised plan to satisfy the court's remand order on August 16, 2016 and no action was taken by the Commission at its August 24, 2016 meeting. On September 15, 2016 notice in connection with the Revised Site Plan date was published to the effect that the Commission approved the submitted revised plans. The complaint states that this is inaccurate since on August 24, 2016 the Commission took no action on " the application." All of this violated § 8-3(g)(1) since the Commission did not cause notice of approval of the site plan application in a newspaper of general circulation--the purpose of which is to give an aggrieved party the opportunity to appeal.

But paragraph 18 then says " the action of the Commission in approving the Modified Site Plan was illegal, arbitrary capricious, and in abuse of its discretion in violation of city regulations, state law, and the court's May 12, 2016 decision for the following reasons:

18. The action of the Commission in approving the Modified Site Plan was illegal, arbitrary, capricious, and in abuse of its discretion, and in violation of its own regulations and applicable state law, and of the Trial Court's decision modifying the Site Plan in one or more of the following ways;

(a) The Modified Site Plan does not comply with Section 60(e)(6) of the New Haven Zoning Ordinance in that the Plan will not result in a no net increase in storm water runoff as a result of the development of the Subject Property proposed by Spinnaker;

(b) The Commission violated the requirement of Connecticut General Statutes Section 8-3(g)(1) to publish Notice of its action in a newspaper of general circulation in New Haven.

(c) The evidence established that the Commission did not properly act in connection with the Modified Site Plan Application in that Commission staff did not review and approve the Revised Plan on August 16, 2016, and the Commission did not confirm the approval of or in any other way consider the Revised Plan on August 24, 2016.

(d) The substantial evidence is that the action of the Commission involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting impairing or destroying the public trust in the air, water or other natural resources of the state.

(e) The decision is the product of bias and predetermination.

(f) The decision represents an intention to circumvent the open meetings requirement of the Connecticut Freedom of Information Act, Connecticut General Statutes Section 1-210 et seq.

19. This appeal is brought pursuant to Connecticut General Statutes § § 8-8 and 8-9a and 22a-19.

A

Before the court is a motion to dismiss filed by the city and Spinnaker, the entity that offered the Site Plan to develop 630 Chapel Street. In briefs filed by the defendants various assertions are made: (1) The modified plan was approved by city staff pursuant to § 64(f)(7)f of the city ordinances, thus there was no " decision of a Board" appealable under § 8-8; (2) Section 22a-19 of the general statutes does not provide an independent basis for appeal. A later brief argues (1) the May 12, 2016 decision of the Court " was a final appealable judgment" therefore the time for appeal had expired long before the Verified Petition of September 21, 2016; (2) the court does not have further jurisdiction because the plaintiff did not avail itself of remedies it may have had (3) the plaintiff was well aware that an administrative site plan review would be performed by city staff to determine compliance with § 60(e)(8) of the city ordinances; (4) no appeal lies under § 22a-19 of the environmental protection act.

The plaintiff disagrees with these positions. The court will conduct a further examination of the facts supporting various positions as it deals with the legal issues raised.

The court will discuss the concept of a final judgment which is a pivotal issue in resolving the complicated issues raised by the motion to dismiss. It will then try to apply that discussion to the facts of this case.

The first question presented involves whether this court's May 12, 2016 decision was a final appealable judgment. The defendant argues that it was and, having failed to take an appeal, the plaintiff is now precluded from appealing the decision of the court under Sections 8-8(o) and 8-9 of the general statutes.

The court would note that as said by Judge Prescott in Connecticut Appellate Practice and Procedure, 5th ed. at page 43 § 2-1:1.1: " The right to appeal is not a constitutional right, but rather a 'statutory privilege' and without an enabling act no right to appeal exists in a civil or criminal case. Failure to provide for an appeal is not a denial of due process, and the legislature may decree any decision of any tribunal to be final and non-appealable." State v. Coleman, 202 Conn. 86, 88-89, 519 A.2d 1201 (1987); see especially State v. Audet, 170 Conn. 337, 341-42, 365 A.2d 1082 (1976). As said in Bronson v. President, etc., of Mechanics' Bank, 83 Conn. 128, 133, 75 A. 709 (1910): " The right to appeal is not a constitutional one, nor one based on principles of natural justice. It is but a statutory privilege which an aggrieved party has the right to avail himself only when he has strictly complied with the provisions of the statutes and rules upon which the privilege is granted." Also see State v. Vachon, 140 Conn. 478, 485-86, 101 A.2d 509 (1953). As said in Fuller's Land Use Law and Practice, Vol. 9A, § 37:1: " For several years, the right to appeal superior court decisions on land use appeals has been limited. The right to take an appeal from judgments or actions of the superior court is controlled by statute, and there is no right to appeal except as expressly allowed by statutory provisions." ^[2] See also Masone v. Zoning Board, 148 Conn. 551, 553, 172 A.2d 891.

On the other hand it is also true that even where the statutory scheme provides for an appeal the generally accepted rule is that there can only be an appeal from what is defined as a final judgment.

In any event the question whether this court's May 12, 2016 decision, despite its order of remand was a final judgment is crucial to the issue of whether this court has any jurisdiction to hear the verified appeal presently before the court. If a final judgment in fact exists, the remedy is by way of appeal to the Appellate Court not by filing what purports to be a new appeal to the trial court--leaving aside of course the issue of whether, despite the foregoing question the present appeal is procedurally viable in any event, given the fact that a prior appeal was filed regarding the...