Gerlt v. Planning and Zoning Com'n

• Decision Date: 10 February 2009
• Docket Number: No. 18150.,18150.
• Citation: 290 Conn. 313,963 A.2d 31
• Court: Connecticut Supreme Court
• Parties: Wayne C. GERLT v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTH WINDSOR et al.

963 A.2d 31

290 Conn. 313

Wayne C. GERLT v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTH WINDSOR et al.

No. 18150.

Supreme Court of Connecticut.

Argued September 5, 2008.

Decided February 10, 2009.

Gwendolyn S. Bishop, with whom were Paul T. Smith, and, on the brief, Paul W. Smith, Windsor Locks, for the appellant (plaintiff).

John P. Casey, with whom, on the brief, was Brian R. Smith, Hartford, for the appellee (named defendant).

Charles D. Ray, with whom, on the brief, were Matthew A. Weiner and William H. Narwold, Hartford, for the appellee (defendant Evergreen Walk, LLC).

Gerald L. Garlick, with whom, on the brief, was Katherine E. Abel, Hartford, for the appellee (defendant Poag and McEwen Lifestyle Centers-Connecticut, LLC).

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

SULLIVAN, J.

The named defendant, the planning and zoning commission of the town of South Windsor (commission), approved the site plan application of the defendant, Poag and McEwen Lifestyle Centers-Connecticut, LLC (Lifestyle), for the development of certain property owned by the defendant, Evergreen Walk, LLC (Evergreen Walk), on the west side of Buck-land Road in the town of South Windsor.¹ The plaintiff, Wayne C. Gerlt, then appealed from the approval to the trial court claiming, inter alia, that the approval was invalid because: (1) it was premised on the assumption that there would be public access to the development over easements on land owned by the town of South Windsor (town), when the granting of the easements was not reasonably probable at the time of the approval and the easements subsequently were declared invalid; and (2) the approval was based on the commission's prior unlawful approval of a general plan of development. The trial court dismissed the appeal on the grounds that: (1) the town had intended to grant easements at the time of the approval; and (2) the commission lawfully had approved the general plan of development. The plaintiff then brought this appeal² challenging these conclusions. The defendants claim, as an alternate ground for affirmance, that the trial court improperly determined that the plaintiff was aggrieved. We conclude that the trial court properly determined that the plaintiff was aggrieved and that the site plan approval was not invalid because the easements had not been granted at the time of the approval. We also conclude, however, that the trial court improperly rejected the plaintiff's claim that the site plan approval was unlawful because the commission's approval of the general plan of development, on which the site plan application was based, was unlawful. Accordingly, we reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In June, 2001, pursuant to § 8.1.2.1 of the South Windsor zoning regulations,³ Evergreen Walk submitted an application for a general plan of development to the commission in which it proposed to construct and operate a complex of retail, office, lodging and recreational facilities on a 232 acre property located on Buckland Road in South Windsor. After the commission approved the general plan of development, Lifestyle submitted a site development plan for a project consisting of fourteen retail and office buildings on a 46.5 acre portion of the property. The site plan showed that one of two private roads that provided access to the proposed development and portions of a parking lot and associated landscaping were located on land owned by the town. The town land was part of a larger property that the town recently had purchased from the state. Shortly after the purchase, the town council had considered a resolution providing in relevant part that "it is the [t]own's intent to convey these parcels subject to [r]eferendum approval, to Evergreen Walk . . . for market value, to be used as part of its development on Buckland Road. . . ." The resolution also provided in relevant part that "the [t]own must provide a letter, as a property owner to the [commission] indicating that it has no objection to the filing of an application by Evergreen Walk . . . for a project planned for Buckland Road. . . ." Because of concerns that a sale of the land effectively would subject the proposed development to a referendum under § 314 of the town charter,⁴ the language pertaining to the sale was deleted from the resolution, but the portion of the resolution authorizing a letter to the commission was adopted.

When Lifestyle submitted its site plan application, it included a letter from the town manager to the director of planning authorizing Lifestyle and Evergreen Walk to include the town's property in the application. The letter stated that "[i]t is expected that an easement or some other form of right-of-way will be granted by the [t]own for use of said property, although the specific terms and nature of this transaction are still being negotiated." In addition, Lifestyle included letters from Evergreen Walk and Bradford Wright, who owned property at 179 Buckland Road that was to be used in connection with the development, stating that Lifestyle was authorized to include the land owned by them in the site plan application. After conducting public hearings on the site plan application, the commission approved it.

The plaintiff, who owns property at 112 Deming Street in South Windsor that is within 100 feet of Evergreen Walk's property, appealed from the approval to the trial court pursuant to General Statutes § 8-8.⁵ The plaintiff claimed that the approval was illegal because the commission had "approved the application for a site plan . . . without receiving the necessary reports and information from other boards and commissions and such information from [Lifestyle] as required by law." The plaintiff also claimed that the commission's approval of the general plan of development was illegal because the commission had no statutory authority to approve it.⁶ Thereafter, Evergreen Walk and Lifestyle filed a motion to dismiss the appeal on the ground that the plaintiff was not statutorily aggrieved because he did not own land within 100 feet of the portion of the property that was the subject of the site plan application.⁷

Meanwhile, the town and Evergreen Walk had entered into an agreement whereby the town granted Evergreen Walk a permanent right to use the land owned by the town in connection with the proposed development. The plaintiff brought a separate action in the trial court challenging the legality of that agreement on the ground that it constituted a conveyance of real property and, therefore, should have been subject to the referendum requirement of § 314 of the town charter. See Gerlt v. South Windsor, 284 Conn. 178, 183 n. 6, 931 A.2d 907 (2007). In May, 2004, the trial court concluded that the agreement was null and void because the town had failed to hold a referendum on the conveyance. Id., at 184-85, 931 A.2d 907. This court ultimately agreed with that conclusion. Id., at 192, 931 A.2d 907. Specifically, this court concluded that the agreement constituted an easement and, as such, was a conveyance of real property subject to § 314 of the town charter. Id., at 190-91, 931 A.2d 907.

In its memorandum of decision in the present case, which was rendered after the trial court's judgment voiding the easement agreement but before this court's decision affirming that judgment, the trial court concluded that the plaintiff was statutorily aggrieved. The trial court also concluded that the invalidation of the easement agreement in the separate action did not render invalid the commission's approval of the site plan application in the present case. Finally, the trial court concluded that, because it had concluded in a separate case; see footnote 6 of this opinion; that the commission's approval of the general plan of development was valid, the approval of the site plan application, which was premised on the general plan of development, was valid.

This appeal followed. The plaintiff claims that the trial court improperly concluded that the approval of the site plan application was valid when Lifestyle had not obtained the easements over the town's property before submitting its application. He further claims that the trial court improperly concluded that the commission's approval of the general plan of development was valid and argues that, because the general plan of development was invalid, the site plan approval also was invalid. The defendants claim, as an alternate ground for affirmance, that the plaintiff was not aggrieved because he does not own property within 100 feet of the portion of the property that is the subject of the site plan application. We conclude that the trial court properly concluded that the plaintiff is aggrieved and rejected the plaintiff's claim that the approval of the site plan application was invalid because Lifestyle had not obtained easements over the town's property at the time that it was approved. We also conclude, however, that, in light of our decision in the companion case of Gerlt v. Planning & Zoning Commission, 290 Conn. 300, 963 A.2d 24 (2009), namely, that during subsequent site plan proceedings, the commission improperly had treated as binding certain decisions and conditions on which the approval of the general plan of development was premised, the trial court improperly dismissed the plaintiff's appeal.

I

We first address the defendants' alternate ground for affirmance that the plaintiff is not statutorily aggrieved under § 8-8 because he does not own property within 100 feet of the land that is the subject of the site plan application. We disagree.

At the outset, we set forth the standard of review. Whether the plaintiff was statutorily aggrieved under § 8-8 under the undisputed factual circumstances of this case is a question of statutory interpretation subject to plenary review. See Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 665-66, ...