Bongiorno Supermarket, Inc. v. Zoning Board of Appeals

Decision Date11 November 2003
Docket Number(SC 16952).
Citation833 A.2d 883,266 Conn. 531
CourtConnecticut Supreme Court
PartiesBONGIORNO SUPERMARKET, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL.

Borden, Norcott, Katz, Vertefeuille and Zarella, Js. Michael J. Cacace, with whom, on the brief, were Jane W. Freeman and Ronald E. Kowalski II, for the appellants (plaintiffs).

Robert A. Fuller, with whom were Brenden P. Leydon and, on the brief, Nicholas E. Wocl and Joseph J. Tooher, for the appellees (defendant Grade A Market CT Limited Partnership et al.).

Opinion

KATZ, J.

The dispositive issue in this appeal1 is whether the plaintiffs, Bongiorno Supermarket, Inc. (Bongiorno's), George Bongiorno, Frank Bongiorno and Maurice Nizzardo, were classically aggrieved by the decision of the named defendant, the zoning board of appeals of the city of Stamford (board), affirming the granting of a permit by Stamford's zoning enforcement officer to the defendants Grade A Market CT Limited Partnership (Grade A) and Stampar Associates, LLC (Stampar),2 because a proposed supermarket would increase traffic on roadways in the vicinity of the plaintiffs' property and businesses. We conclude that, because the trial court did not find an adverse traffic impact from the defendants' proposal upon any specific personal or legal interest belonging to the plaintiffs, the court properly dismissed the plaintiffs' appeal.

The record discloses the following pertinent facts and procedural background. Stampar owns approximately 7.6 acres of property on Commerce Road in Stamford, which it proposed to lease to Grade A, and on which Grade A planned to build and operate a new supermarket. Together, in the summer of 2000, the defendants received a zoning permit from Stamford's zoning enforcement officer, allowing Grade A to construct a supermarket consisting of two buildings totaling approximately 100,000 square feet.3 The plaintiffs Frank Bongiorno and Maurice Nizzardo own property at 198 Baxter Avenue in Stamford, where a used car dealership is located, and the plaintiffs Frank Borngiorno and George Bongiorno own property at 288 West Avenue in Stamford and operate a supermarket at that location. The Baxter Avenue property is approximately 428 feet from the Stampar property, while the West Avenue property is approximately 841 feet from the Stampar property.4

The plaintiffs appealed from the granting of the zoning permit to the board, which affirmed the decision. Pursuant to General Statutes §§ 8-8 (b) and 8-10,5 the plaintiffs thereafter appealed to the trial court, claiming to have been classically aggrieved. They alleged that "[t]he proposed site development will cause increased traffic, traffic hazards and traffic congestion on roadways in the immediate vicinity of the plaintiffs' real properties and businesses, thereby causing adverse traffic conditions and impacts on the plaintiffs, their customers, their businesses and their real property interests." The defendants filed a motion to dismiss the appeal for lack of subject matter jurisdiction, claiming that the plaintiffs were not aggrieved.

An evidentiary hearing was held, at the conclusion of which the trial court made several findings of fact pertaining to the potential traffic impact that have not been challenged in this appeal. The trial court examined "[t]he specific problem identified by the plaintiffs [as] the amount of traffic at the intersection of West Avenue, the street on which Bongiorno's is located, and U.S. Route #1, also known as West Main Street and as the Post Road," and found that "this intersection, which is currently causing delay for motorists, will become more crowded and cause more delay." The court remarked that the plaintiffs had acknowledged that 59 percent of Bongiorno's customers do not use the intersection at issue, "but, rather, gain access to the store by other roads."6 The court also credited evidence produced by the defendants that even those patrons who tend normally to use that intersection avail themselves of alternate routes when traffic problems occur.7 Significantly, the court neither quantified the increase in traffic nor articulated how much longer it would take Bongiorno's customers to get through the intersection during peak weekday or weekend hours.8

Next, the trial court noted that it was unpersuaded by the plaintiffs' evidence that the market value of their properties will be negatively impacted by the defendants' proposal. Finally, to the extent that the court understood the plaintiffs' claim regarding diminution in market value to be linked to a loss of business or profits prompted by increased competition, the court recognized that such a claim cannot form the basis of aggrievement.9 Ultimately, the trial court determined that "while [the plaintiffs] may have a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, there was no evidence presented that their interests have been specially and injuriously affected.... The traffic congestion at the intersection in issue affects everyone passing through it, not just Bongiorno's customers. In other words, there is no specific and personal injury to the plaintiffs and/or their customers by reason of any increased traffic and delay generated by the defendants' proposal at that intersection. All that is involved is the possibility that some of Bongiorno's customers may decide to choose the proposed new supermarket because it meets their needs in a better fashion." (Citation omitted.) Accordingly, the trial court thereafter determined that the plaintiffs had not established classical aggrievement and dismissed their appeal. This appeal followed.

We necessarily begin our review of this appeal with a consideration of the plaintiffs' threshold claim that the trial court improperly failed to find that the adverse traffic impact required a determination that they were classically aggrieved.10 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. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990) ... Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). 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." (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 637, 662 A.2d 1251 (1995).

Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. See, e.g., Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 159, 699 A.2d 142 (1997); Bakelaar v. West Haven, supra, 193 Conn. 65. "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." Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002).

The plaintiffs do not claim statutory aggrievement pursuant to § 8-8 (a) (1), which requires that they have property that abuts the subject property or is within 100 feet of that property. Rather, their claim is predicated on classical aggrievement. "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.... Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [supra, 193 Conn. 65].... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.... Light Rigging Co. v. Dept. of Public Utility Control, [219 Conn. 168, 173, 592 A.2d 386 (1991)].... Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 234 Conn. 638." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 410-11.

In the present case, the trial court did not decide explicitly whether the plaintiffs had satisfied the first prong of the test, that is, whether they have a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest.11 Rather, the court turned directly to the second prong of the test and identified the two factors on which the plaintiffs relied to demonstrate that their interests had been specially and injuriously affected. The trial court quickly dismissed the increase in competition as a basis for aggrievement; see footnote 9 of this opinion; as well as the plaintiffs' claim that the market value of their properties will be negatively impacted by the defendants' proposal,12 and turned to the plaintiffs' claim that the increase in traffic provided a legally sufficient basis for their claim of aggrievement. Distinguishing factually the cases cited by the plaintiffs, in specific,...

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