D.F.C. of Maiden, LLC v. Beacon Insurance & Investment Group, LLC

• Decision Date: 25 July 2016
• Docket Number: CV136006524S
• Citation: D.F.C. of Maiden, LLC v. Beacon Insurance & Investment Group, LLC, CV136006524S (Conn. Super. Jul 25, 2016)
• Court: Connecticut Superior Court
• Parties: D.F.C. of Meriden, LLC v. Meriden Planning Commission et al

D.F.C. of Meriden, LLC v. Meriden Planning Commission et al

No. CV136006524S

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

July 25, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

John F. Cronan, J.

I STATEMENT OF APPEAL

The plaintiff, D.F.C. of Meriden, LLC, appeals from the decision of the defendant, the Meriden Planning and Zoning Commission (the commission), granting the application of the defendant John B. Kennelly (Kennelly), on behalf of his client, Lamar Central Outdoor (Lamar), which sought to construct an electronic billboard located at 528 Murdock, Avenue (the application). The plaintiff alleges, inter alia various failures by the commission to properly apply the Meriden Zoning Regulations. The plaintiff also alleges that the defendant is not exempt from its own regulations pursuant to General Statutes § 8-2 and Chapter 213 § 5A of the Meriden Zoning Regulations.

II BACKGROUND

The record reveals the following facts. On June 27, 2013, the defendant, Kennelly, filed an application for a certification of approval to the defendant, the commission, on behalf of his client, Lamar, requesting permission to erect an electronic billboard located at 528 Murdock Avenue, Meriden Connecticut. Return of the Record (ROR) Ex. A. Notice of the commission's meeting regarding the application for a certificate of approval for the electronic billboard was sent to abutting landowners. ROR Ex. C. The plaintiff is an abutting landowner as it owns property known as Nessing Field, which consists of two softball fields, a parking lot and land that is undeveloped. ROR Ex. U. On July 10, 2013, the commission held a meeting to discuss the application and it was decided that the application needed to conform with the billboard standards in place at the time of the application. During the same meeting, the commission discussed amending the Meriden Zoning Regulations, which included amending the text for the billboard regulations and also adding a billboard overlay zone. ROR, Ex. F., p. 2. On August 14, 2013, the commission approved the certificate of approval for the electronic billboard, with conditions, noting that the billboard needed to comply with the billboard standards approved by the Meriden City Council. ROR Ex. F and Ex. I. Legal notice of the commission's decision to approve the application was published on August 16, 2013. ROR Ex. J. Kennelly was notified of the commission's approval on August 19, 2013. ROR Ex. T. Additionally, the City of Meriden (City) entered into a twenty-year lease agreement with Lamar in which the City of Meriden will generate revenue from the lease agreement with Lamar. Lamar also agreed to provide 2, 000 per year of advertising at no cost to the City, for local public service announcements during the terms of the lease. ROR Ex. Z.

The plaintiff commenced his appeal on August 30, 2013, asserting that the commission's approval of the application were invalid due to: (1) the lack of substantial evidence to support the commission's decision and (2) various defects in the application and the commission's approval. On September 16, 2013, the Meriden City Council adopted the billboard overlay district, pursuant to Meriden Municipal Code Chapter 213 § 56, in which the subject parcel is located. ROR Ex. AA and Ex. FF.

The commission filed a return of record on December 10, 2015, and supplemental to the return of records on December 14, 2015, March 29, 2016, and April 21, 2016. In accordance with the court's scheduling order, the plaintiff filed its pretrial brief on January 20, 2016. The defendants filed their pretrial briefs on February 23, 2016, to which the plaintiff filed a reply on March 8, 2016. The court conducted a trial, hearing oral argument from the parties, on March 22, 2016. The court now renders its decision.

III JURISDICTION

General Statutes § 8-8 governs an appeal from a planning and zoning commission to the Superior Court. " A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A Aggrievement

" Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). " [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).

" Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). As for statutory aggrievement, § 8-8(a)(1) provides that an " aggrieved person" includes " any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." " Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 575, 79 A.3d 115 cert. denied, 310 Conn. 964, 83 A.3d 346 (2013).

In its complaint and brief, the plaintiff alleges that it is the owner of property located at 470 Murdock Avenue in Meriden, which abuts the property located at 528 Murdock Avenue. The court, therefore, finds that the plaintiff is statutorily aggrieved pursuant to § 8-8(a)(1) as an owner of abutting property.

B Timeliness and Service of Process

Section 8-8(b) provides that " [an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . ." Section 8-8(f) provides that " [s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57."

General Statutes § 52-57(b) provides, in relevant part: " Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." Section 8-8(g) provides that " [s]ervice of process shall also be made on each person who petitioned the board in the proceeding, provided such person's legal rights, duties or privileges were determined therein."

Notice of the commission's decision was published on August 16, 2014. The marshal's return of service indicates that service of the plaintiff's complaint was made upon all defendants on August 30, 2014, within the fifteen-day period allowed by § 8-8(b), and by methods permitted by § § 52-57(b)(5) and 8-8(f)(2). The defendants offered no contradictory evidence or objection to the method of service. Therefore, the court finds that the plaintiff's appeal was timely and properly served.

IV SCOPE OF REVIEW

" [T]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . ." (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 441, 908 A.2d 1049 (2006). " [A zoning] board is endowed with a liberal discretion and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . ." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

" The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Citations omitted; internal quotation marks omitted.) E& F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 14-15, 127 A.3d 986 (2015).

" In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale,...