78 Olive Street v. New Haven City Plan Commission

• Decision Date: 12 May 2016
• Docket Number: CV156053885S
• Court: Connecticut Superior Court
• Parties: 78 Olive Street v. New Haven City Plan Commission et al

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

No. CV156053885S

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UNPUBLISHED OPINION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 the decision by the defendant commission giving its approval of Special Permit and Site Plan Applications for the property at 87 Union Street. Previously the property had been rezoned from BA (General Business) to BD-1 (Central Business District). This later decision is subject to an appeal in CV 15-6052216 which is currently pending. In this appeal, CV 15-6053885, the claim is made that the Commission's decisions approving the Site Plan and Special Permit represent a " failure to enforce the standards of the New Haven Zoning Ordinance . . . in its administrative review" . . . and " were arbitrary and illegal" in any event.

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 (a)(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. 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.

(a)

The court will first discuss the plaintiff's claim that it is statutorily aggrieved. As noted in CV 15-2052216 when the court addressed the issue of statutory aggrievement, the plaintiff owns property at 78 Olive Street. Its property does not abut 87 Union Street and no part of 78 Olive Street is within 100 feet of the 87 Union Street parcel which was the subject of the special permit and site plan application. The statutory aggrievement issue in CV 15-6052216 (appeal from BD-1 map amendment for subject property) is the same issue as that issue presents itself in this appeal. The court adopts by reference its discussion in CV 15-6052216 wherein it found that no claim for statutory aggrievement could be made, see page 6 through page 20 up to subsection (b).

The plaintiff makes the same arguments here for statutory aggrievement as it made in CV 15-6052216 but adds two new observations which the court will now try to address.

(1.)

First it is necessary to quote from the plaintiff's brief where the point is made that the 87 Union Street properties and the 630 and 673 property " are inextricably linked" and thus because the plaintiff's property is within 100 feet of the Chapel Street properties statutory aggrievement is established because the " record is replete with references by city representatives and the applicant to the role the Comcast amendments and underlying research for those amendments and approvals play in serving as a basis for these approvals."

The plaintiff refers to ROR 6, the Traffic Impact Study for 87 Union Street, which states at page 1 that " data collection was conducted at these locations in January 2015 and by others in September 2014 as part of a separate development planned at 630-640 and 673 Chapel Street." But this quote must be put in context. In the same paragraph but before it, it states: " This study evaluates how Union Fair (87 Union Street) will impact the adjacent roadway network . . . Seven key intersections in the vicinity of the site were analyzed for this study." After the quote the paragraph goes on to state that " the field observations and data collected at these intersections were used to evaluate the potential impacts caused by the proposed development and make recommendations to mitigate any impacts caused by the proposed development and make recommendations to mitigate any impacts and improve operating conditions. The analysis presented in this study indicates there is adequate capacity on the area roadway network to accommodate the Union Fair development and the intersections analyzed will continue to operate at acceptable levels of service" (emphasis by court). Data collected, in other words, was used to discuss traffic impact caused by 87 Union Street only as the underlinings make clear.

This is further underlined when one considers a quote from page 9 of the report which the plaintiff refers to: " Recent count data obtained in September 2014 at part of the traffic study prepared by Milone and Mac Brown, Inc. for a new residential and retail development at 630-640 and 673 Chapel Street were used with concurrence from the City of New Haven Traffic Transportation, and Parking Department at the following intersections: Union Street at Chapel Street; Olive Street at Chapel Street; Olive Street at Wooster Street; State Street at Chapel Street. In other words, the Union Street and Spinaker (Chapel Street) developments are inextricably linked." But only five of the previously referred to intersections are mentioned in that specific paragraph of the report--on the same page 9 just above the quoted language it states " manual turning movement and vehicle classification counts were conducted in January 2015 to determine the 2015 peak-hour traffic volumes at the following intersections (the missing two intersections) as part of this study: Union Street at Fair Street; Union Street at Water Street. " A cursory inspection of the maps introduced into evidence indicates that these...