Alvord Inv. V. Zon. Bd. of App. of Stamford

• Decision Date: 15 May 2007
• Docket Number: No. 17755.,17755.
• Citation: 282 Conn. 393,920 A.2d 1000
• Court: Connecticut Supreme Court
• Parties: ALVORD INVESTMENT, LLC et al. v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

920 A.2d 1000

282 Conn. 393

ALVORD INVESTMENT, LLC et al. v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

No. 17755.

Supreme Court of Connecticut.

Argued January 9, 2007.

Decided May 15, 2007.

Brenden P. Leydon, with whom was David W. Rubin, Stamford, for the appellants (defendants).

Michael J. Cacace, with whom was Jane W. Freeman, Stamford, for the appellees (plaintiffs).

Edward M. Rosenblatt and David S. King, filed a brief for the Real Property Section of the Connecticut Bar Association as amicus curiae.

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

The principal issue in this zoning appeal is whether the Common Interest Ownership Act (act), General Statutes § 47-200 et seq., allows for the creation of a common interest community comprised solely of airspace units. The defendants, the zoning board of appeals (board) of the city of Stamford (city) and the owners of neighboring properties (residents),¹ appeal² from the judgment of the trial court sustaining the appeal of the plaintiffs, Alvord Investment, LLC (Alvord) and the Stop and Shop Supermarket Company (Stop & Shop), from the board's reversal of the zoning enforcement officer's decision to permit the plaintiffs to construct a Super Stop & Shop on property included within a common interest community in which the plaintiffs have a leasehold interest. The defendants claim that the trial court improperly concluded that (1) the plaintiffs were aggrieved by the board's decision, (2) the plaintiffs were not required to obtain subdivision approval prior to receiving a zoning permit, and (3) the proposed Super Stop & Shop met the classification of "Food Shops, Retail" established in the city zoning regulations. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The property in question is owned by Cytec Industries, Inc. (Cytec), and consists of approximately thirty-five acres located at 1937 West Main Street in the city (Cytec property). Cytec operates a chemical research and development laboratory on this site. Cytec executed a ground lease, notice of which was recorded in the city land records on February 4, 2004, leasing the entire site to Stamford Labs Realty Holdings, LLC (Stamford Holdings), for a term of eighty-five years. On the same day, Stamford Holdings recorded a declaration creating a common interest leasehold planned community³ to be known as the West Main & Alvord Commercial Park, and through the declaration, submitted the community to the provisions of the act.

The declaration created three airspace units within the planned community, labeled units A, B and C. The present case focuses primarily on the series of leases and transfers involving unit A, an airspace unit that extends over approximately seven acres of the Cytec property. Stamford Holdings leased unit A to Stamford Labs Realty-A, LLC, for a period of seventy-five years, which then subleased it to Alvord for seventy-five years minus two days. Alvord, in turn, sub-subleased unit A to Stop & Shop for a period of twenty-five years. The lease from Alvord to Stop & Shop also included a not-yet-constructed one-story building and improvements.

The Cytec property is subject to the city's zoning regulations, which classify the parcel as located in a "light industrial" zone. Stamford Zoning Regs., Appendix A, Land Use Schedule. This classification allows the property owner to make many uses of the property as of right, including a "Food Shops, Retail" use. Id. In January, 2002, pursuant to this zoning classification of the Cytec property, the plaintiffs originally applied to the zoning enforcement officer for a permit to construct a retail food shop/grocery store. At that time, the plaintiffs intended to accomplish their plans via a ground lease with an option to purchase between Cytec and Starwood Ceruzzi, LLC, the developer of the proposed supermarket,⁴ notice of which was filed in the city land records in March, 2002. That lease was canceled pursuant to a termination agreement filed on August 12, 2003, after discussions between the plaintiffs, the zoning enforcement officer and the city's corporation counsel led to the conclusion that the proposed lease arrangement likely would require the plaintiffs to seek subdivision approval. Long before they filed the termination agreement, and at least as early as June, 2002, the plaintiffs decided to modify their development plan by declaring a common interest community, rather than proceeding with the original lease arrangement. To that end, Stamford Holdings created the West Main & Alvord Commercial Park via a declaration dated December 4, 2003, and filed on February 4, 2004. After nearly two years of review of the plaintiffs' application for a zoning permit, during which each of the city departments with an interest in the proposed development approved the application, the zoning enforcement officer approved the plaintiffs' application for a zoning permit on December 12, 2003. The zoning enforcement officer published notice of that approval on December 30, 2003, pursuant to General Statutes § 8-7.

On January 9, 2004, the residents appealed from the issuance of the zoning permit to the board. The board held a public hearing on the appeal on March 24, 2004, and at a subsequent meeting held on April 28, 2004, voted four to one to reverse the zoning enforcement officer's decision to issue the permit to the plaintiffs. The board published notice of its decision on May 13, 2004, and the plaintiffs timely appealed from that decision to the trial court pursuant to General Statutes § 8-8.⁵

The plaintiffs challenged the board's reversal of the zoning enforcement officer's decision on several grounds. They claimed, inter alia, that the board: (1) lacked jurisdiction to determine whether subdivision approval was required for the plaintiffs' proposed development of the Cytec property; (2) improperly had concluded that the plaintiffs were required to seek subdivision approval from the planning commission because their plan for the property constituted a "de facto" subdivision; and (3) improperly had weighed factors not relevant to the issuance of a zoning permit, such as concerns of neighboring property owners, traffic issues and whether the common interest community consisted of common uses. The defendants argued in response that (1) the plaintiffs lacked standing because they had failed to meet the requirements for forming a common interest community and, therefore, could not show that they were aggrieved by the decision of the board, and (2) the supermarket failed to classify as "Food Shops, Retail" under the zoning regulations because it "is really in the nature of a department, retail-style store as opposed to a traditional grocery store."

The trial court addressed the jurisdictional issues first and concluded that (1) the plaintiffs had standing to bring the appeal because they had complied with the act and, therefore, were aggrieved by the board's decision, and (2) it lacked the jurisdiction to determine whether the board had exceeded its authority in determining that subdivision approval was required because the plaintiffs had failed to raise that issue before the board, so that the doctrine of exhaustion of remedies barred that claim. The trial court then sustained the plaintiffs' appeal and specifically concluded that (1) the plaintiffs were not required to seek subdivision approval from the planning commission before obtaining a zoning permit for their development, and (2) the proposed supermarket is a permitted use under the applicable zoning laws. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the defendants claim that the trial court improperly: (1) concluded that the plaintiffs were aggrieved by the decision of the board because it misconstrued certain provisions of the act; (2) determined that the plaintiffs' development plans did not constitute a subdivision; and (3) determined that the proposed supermarket properly was classified as "Food Shops, Retail."

I WHETHER THE PLAINTIFFS WERE AGGRIEVED BY THE BOARD'S DECISION

We begin by reviewing the defendants' threshold claim that the trial court improperly determined that the plaintiffs were classically aggrieved by the decision of the board. "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . .

"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. . . . We do not disturb the trial court's conclusions on appeal unless those conclusions are unsupported by the subordinate facts or otherwise violate law, logic or reason." (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39, 833 A.2d 883 (2003).

"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and...