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

• Decision Date: 12 May 2016
• Docket Number: CV146050230S
• Court: Connecticut Superior Court
• Parties: 78 Olive Street Partners, LLC v. City of New Haven Board of Alders et al

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

No. CV146050230S

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UNPUBLISHED OPINION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 case involves an appeal from decisions of the New Haven Board of Alders and the New Haven City Plan Commission. By a petition dated March 28, 2014 Spinnaker Residential, LLC filed a petition with the Board requesting that the Board amend the New Haven Zoning Ordinance Map to rezone properties at 630 and 673 Chapel Street from a Business Zone (BA) Zoning District to a Business Zone BD-1 Zoning District (which will be referred to on the Map Amendment).

At the same time Spinnaker filed a petition with The Board that sought to amend the New Haven Zoning Ordinance. As noted in The plaintiff's complaint (par. 7) The amendment were as follows: " (i) Section 1, in order to delete the definition of " Height" and replace it with definitions of " Height" and " Height Average"; (ii) Section 43(b)(1) by adding the following to the table: " **where a lot in a BD-1 District abuts an RS-1, RS-2, RM-1 or RM-2 Residence District, the maximum permitted FAR is 3.0 (floor area ratio)"; (iii) Section 43(c) by adding the following as a subsection (6): " Where a lot in a BD-1 District abuts property in an RS-1 RS-2, RM-1 or RM-2 Residence District, a maximum building or structure height of 70 feet is permitted"; and (iv) Section 45(a)(1)a.1. to provide that the parking requirement for a dwelling unit in the BD-1 District shall be the same as for a dwelling in the RH-2 District (i.e. 0.75 space per dwelling unit) (collectively, the Text Amendments).

1.

The court will briefly refer to the factual background of the case which it will expand upon when it addresses the merits of the case. Spinnaker entered into a contract to purchase land at 630 Chapel Street which is on the south side of that street as it borders the intersection of Chapel and Olive Streets. It also contracted to purchase 673 Chapel Street which is directly across from 630 Chapel Street and used as a parking lot by Comcast, Inc. which presently owns both parcels. The parcels together comprise 2.27 acres. The plaintiff 78 Olive Street owns property which abuts 673 Chapel Street and is within one hundred feet of 630 Chapel Street.

As noted Spinnaker filed the previously mentioned petitions to change the Chapel Street addressed from Business District BA to Business District BD-1. To quote from the defendant Spinnaker's brief: " Spinnaker sought the zone change to allow it to redevelop the site into a mixed--use development 'comprised of multifamily residential apartments with neighborhood retail and community amenity space on the ground floor'" (ROR3A). The site is within approximately 300 feet of the State Street Train Station and one half mile of the Union Street Station. (ROR56.) It is also on a bus line that operates on Chapel Street (ROR18). To the west of the site is the Downtown area of the city which is a block away over the train tracks and State Street which intersects Chapel Street. To the east of subject properties across Olive Street is the Wooster Square residential neighborhood.

As noted the site lies at the intersection of Chapel and Olive Streets. At the southeast corner of that intersection St Paul and Saint James Church is located. Directly across the street on the northeast corner is a mixed use building with retail medical on the first floor and four stories of residential use above that. The Strouse Adler building to the immediate north of 673 Chapel Street at 78 Olive Street is a converted historic large factory building 4 1\4 to 5 stories high which contains rental units: South of the intersection between Wooster Street and Water Street and on the east side of Olive Street is a six-story public housing building. Directly to the south of 630 Chapel Street is property known as 87 Union Street, described as underutilized property and at another point as a parking lot with vacant buildings. Immediately to the west of 630 Chapel Street and abutting it is a Firestone Car service building.

2. Aggrievement

As noted, the appeal in this matter is taken from (1) the granting of a map amendment to 630 and 673 Chapel Street changing the parcels' designation from BA to BD-1--both business districts and (2) in a text amendment changing provisions in BD-1 ordinances regarding maximum height, parking requirements and, the F.A.R. (floor area ratio). Lengthy briefs and oral argument was had on the merits of these actions but before the court can have authority to address the merits, 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 v. Town Council, 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 aggrieveinent Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). In a zoning appeal " The trial court hears no evidence, except on 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 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 bafflers" 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. This as noted in Lucas v. Zoning Commission, 130 Conn.App. 587, 23 A.3d 1261 (2011): " A statutorily aggrieved person need not have sustained any injuries, " id. page 594.

There is no dispute that the 78 Olive Street property abuts 630 Chapel Street and is within 100 feet of 673 Chapel Street. At trial of this matter the ownership of the 78 Olive Street address was established. And it was also true that the claim for aggrievement was based on statutory aggrievement and not on the basis of classical aggrievement.

Given the location of the 78 Olive Street property vis-a-vis the Chapel Street properties statutory aggrievement has been established regarding the map amendment which changed the...