78 Olive Street Partners v. City of New Haven Board of Alders

• Decision Date: 12 May 2016
• Docket Number: CV156052216S
• Court: Connecticut Superior Court
• Parties: 78 Olive Street Partners v. City of New Haven Board of Alders et al

78 Olive Street Partners v. City of New Haven Board of Alders et al

No. CV156052216S

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

May 12, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Thomas J. Corradino, Judge Trial Referee.

This is an appeal from a decision of the City Board of Alders granting a petition which amended New Haven's Zoning Map thereby changing the zoning designation of a 2.59-acre parcel located at 87 Union Street from general business (BA) to Central Business Residential (BD-1). 87 Union is the This is an appeal from a decision of the City Board of Alders granting a petition which amended New Haven's Zoning Map thereby changing the zoning designation of a 2.59-acre parcel located at 87 Union Street from general business (BA) to Central Business Residential (BD-1). 87 Union is the contract purchaser and submitted to map change to the Board. The defendant describes the property as being " bounded by Union Street to the west, Olive Street to the east, a portion of Fair Street to the South and property known as 630 Chapel Street to the north." The property is adjacent to existing BD-1 areas to the west and to the north.

The appeal raises a variety of claims:

(a) The Petition fails to meet the requirements and standards in the Special Act, Charter, and New Haven Zoning Ordinance.

(b) The decision of the City Plan Commission giving a favorable recommendation to the Petition to amend the Zoning Map was arbitrary, contrary to the evidence, is not supported by reasonable or substantial evidence, and does not find a basis in fact or law.

(c) The decision of the Board of Alders adopting the Map Amendment is contrary to the evidence, not supported by reasonable or substantial evidence, and does not find a basis in fact or law.

(d) The Commission has abrogated its authority and responsibility under the Special Act, Charter, and Zoning Ordinance to plan for and zone in the interests of the community as a whole.

(e) The Board abrogated its authority and responsibility under the Special Act, Charter, and Zoning Ordinance to zone in the interests of the community as a whole.

(f) Parcel by parcel rezoning represented by the Commission's recommendation and the Board's approval is antithetical to comprehensive planning and transforms the use of zoning districts into a flexible zoning tool conventionally within the province of planned development districts but without any of the standards and safeguards that are required as a concomitant to such regulatory flexibility.

(g) The adopted Map Amendment is not in accordance with the comprehensive plan of the City of New Haven or the Comprehensive Plan of Development of the City of New Haven.

(h) The decisions of the Commission and of the Board are the product of bias and predetermination.

(i) In their turn, the City Plan Commission and the Board through its Legislation Committee, failed to conduct a fair hearing or to respond to questions raised by members of the public, including the Plaintiff.

(j) The Map Amendment constitutes illegal spot zoning.

(k) The Map Amendment constitutes illegal contract zoning.

(l) The Map Amendment violates the uniformity requirement and results in increased congestion in the streets.

(m) Notice is fatally defective.

(n) The rezoning represents an inappropriate use of the BD-1 Zoning District that has at its core adaptive reuse of historic structures, infill construction and coherent mixed use, neighborhood oriented development.

1.

In a well briefed argument the plaintiff addresses these claims to which the defendants also make well reasoned responses. But before these claims can be addressed by the court the plaintiff must show that the court has jurisdiction to address them--in other words that the plaintiff is an aggrieved party and therefore has standing to advance its arguments and secure a decision from the court on the substantive issues raised. " Upon appeal (a zoning appellant) must establish his (her or its) aggrievement and the court must decide whether (the appellant) has sustained the burden of proving that fact, " I. R. Stich Associates, Inc. v. Town Council of West Hartford, 155 Conn. 1, 3, 229 A.2d 545 (1967). As the court said in Abel et al. v. Planning and Zoning Commission of the Town of New Canaan et al., 297 Conn. 414, 437, 998 A.2d 1149 (2010): " It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction. If a party is found to lack (aggrievement), the court is without subject matter jurisdiction to determine the cause, " quoting from Soracco v. Williams Scotsman, Inc., 292 Conn. 86 91, 971 A.2d 1 (2009), cf. Stauton v. Planning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004), and Lucas v. Zoning Commission, 130 Conn.App. 587, 595 23 A.3d 1261 (2011), which interpreted Stauton to say that the Supreme Court held that since, for example, the plaintiffs were not statutorily aggrieved " the trial court should not have considered the merits of the appeal."

Section 8-8(b) of the general statutes provides that any person aggrieved by a decision of listed land use agencies commissions, or city entity making a land use decision may appeal to the Superior Court. Subsection (1) of the statute defines an " aggrieved person" as anyone aggrieved by a decision of one of these entities and goes on to say that aggrieved person " includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board" (i.e. one of the entities previously described). (Emphasis by court.) The use of the word " includes" indicates there are two types of aggrievement which establish the right of an appellant to claim it is an aggrieved person--classical aggrievement and statutory aggrievement which is referred to in the just quoted statutory language.

As noted, a plaintiff on a land use appeal has the burden of proving aggrievement. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). In a zoning appeal " the trial court hears no evidence, except on the issue of aggrievement, " Kyser v. Zoning Board of Appeals, 155 Conn. 236, 247, 230 A.2d 595 (1967).

Classic aggrievement was the traditional basis to appeal a land use decision and the burden was on the appellant to prove it. The court will now discuss the legislative enactment that gave a statutory right to appeal.

The Court in Caltabiano v. Planning and Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989), set forth what elements must be proven to establish classical aggrievement and discusses the heavy burden on a party who claims this type of aggrievement. At page 668 the court stated that before the legislature gave a statutory right of appeal " a person appealing from (a land use decision) had, then as now an arduous burden to allege and prove so-called classical aggrievement. In order to prove classical aggrievement appellants from a zoning decision are required to establish . . . that they had a specific, personal interest in the subject matter of the decision as distinguished from a general interest such as is the concern of all members of the community and that they were specially and injuriously affected in their property or other legal rights . . . Mere generalizations and fears do not prove that an appellant is an aggrieved person."

The court went on to say that it was in light of these " formidable barriers" to access to the courts for zoning matters that the intention behind creating a statutory right to appeal was to be understood. The court then said: " We conclude 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 zoning agency to be entitled to appeal that decision to the court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land would not unduly enlarge the class of those entitled to appeal such a decision. On the other hand the delay difficulty and expense of proving classical aggrievement would be eliminated." 211 Conn. at pages 668-69.^[1]

(a)

The court will first discuss the plaintiff's claim that it is statutorily aggrieved and on that basis has a right to appeal from the action of the defendant. The subject of this appeal regards an amendment of the City's zoning map of a property located at 87 Union Street in New Haven. The amendment changed the designation of that parcel from General Business (BA) to Central Business--Residential (BD-1). The plaintiff who contests the legality of the amendment owns property at 78 Olive Street located to the north of the 87 Union Street property. The 78 Olive Street property does not abut the 87 Union Street parcel. It is also true and not disputed that no part of the 78 Olive Street parcel is within 100 feet of the 87 Union Street parcel which parcel is the subject of the amendment which the plaintiff argues was illegal, improper, and violated the City's zoning regulations. As noted before the court can address the merits of the plaintiff's position on the legality of the amendment, however, the court must determine if the plaintiff can be said to be aggrieved by the decision, that is, has standing to raise the substantive claim.

The question presented is given the above quoted statement as to the location of 87 Union Street, which was the subject of the amendment can the court make a finding of statutory aggrievement when the statute defines an aggrieved person as " any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." The purpose and language of the statute...