Global Companies, LLC v. Clinton Planning & Zoning Commission

• Decision Date: 27 November 2015
• Docket Number: LNDCV146054440S
• Court: Connecticut Superior Court
• Parties: Global Companies, LLC v. Clinton Planning & Zoning Commission et al

Global Companies, LLC v. Clinton Planning & Zoning Commission et al

No. LNDCV146054440S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Land Use Litigation Docket

November 27, 2015

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Marshall K. Berger, J.

I

The plaintiff, Global Companies LLC (Global), ^[1] appeals from an August 11, 2014 decision of the defendant, the Clinton planning and zoning commission (commission), denying its application for a special exception to construct a propane storage facility at 140 Knollwood Drive in Clinton. Stanley Black & Decker, Inc. (Stanley)^[2] owns the 37.33-acre property which is located in the I-1 zone. (Return of Record [ROR], Item I.B.1.) Under § § 10.50 and 10.51 of the zoning regulations of the town of Clinton (regulations) a propane storage facility is allowed by special exception. (ROR, Item XII.B, pp. 10127-30.)

The property is bounded by a rail line, industrial and residentially zoned property, a salt marsh, and the Hammonasset River. (Exhibit 1.) Distances from property lines to storage tanks would range from 200 to 750 feet. (ROR, Item II.J, p. 1.) According to Global's proposal, twelve 45 000-gallon storage tanks holding a total of 540, 000 gallons of liquified propane will be constructed. (ROR, Item I.B.4; Item IV.A, p. 4.) During the heating season, it is expected that twenty tractor trailer trucks will enter and leave the facility each weekday from 7:00 a.m. to 8:00 p.m. and travel through the residential neighborhood to the Hammonasset connector and Route 1 to Interstate 95. (ROR, Item VI.F, p 15, Item VIII.A, p. 5.) An existing rail spur will be extended to accommodate sixteen cars which could each contain 30, 000 gallons of propane; cars would arrive eight at a time. (ROR, Item IV.A, p. 4.) Global intends on utilizing six of the thirty-seven acres for the facility. (ROR, Item I.B.2; Item VIII.A, p. 5.) The commission received a written petition with 260 signatures and an online petition of 203 signatures and then another 328 signatures all opposed to the application.^[3] (ROR, Item II.II; Item II.FFF.)

A group of residents known as the Hammonasset Environmental Trust (Trust) with Victor Caprio of 14 Taylor Ridge in Clinton sought to intervene in the proceeding by filing a petition pursuant to General Statutes § 22a-19 on June 2, 2014. (ROR, Item IX.C.) The commission held a public hearing on June 2, 2014, which was continued to July 7, 2014, and concluded on August 4, 2014. (ROR, Item III.E; Item III.G; Item III.I; Items VIII.A-VIII.C.) On August 11, 2014, during its regular meeting, the commission voted to deny Global's special permit. (ROR, Item IV.A; Item VIII.D.) Notice of the decision was published in the Harbor News on August 21, 2014. (ROR, Item IV.B.)

Global commenced this appeal on August 28, 2014. Global alleges that its application met all requirements in the commission's regulations, but the commission required improvements that were preempted by federal law, bowed to pressure from local residents, prejudged the application, and failed to provide Global with a fair administrative process. The return of record was filed on February 18, 2015. Global filed its brief on March 31, 2015, and the commission, the Trust, and Caprio filed their briefs on May 12, 2015. The court heard the appeal on August 4, 2015. Supplemental briefs regarding aggrievement were filed by the Trust and Caprio on August 5, 2015, by Global on August 7, 2015, and by the commission on August 10, 2015.

II

Global has alleged and proven, through an affidavit and exhibits submitted without objection, that Stanley or its predecessors has been the owner of 140 Knollwood Drive and that Global was the contract purchaser for that land from the time of the application through the time of the appeal before this court. " It is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner." Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015). Therefore, this court found that Global is aggrieved on August 4, 2015.

As to the Trust and Caprio, Global attempted to revisit the September 30, 2014 ruling by the court, Domnarski, J., granting the motion to intervene at the August 4, 2015 hearing before this court. First, Global argues that the commission never formally acted upon the petition during the administrative process. While the parties agree that the record does not reflect a formal action on the petition, Global's counsel at the August 4, 2015 hearing agreed that at least one of the commission's reasons for denial is the functional equivalent of such formal action. Additionally, Global alleges in paragraph twelve of the complaint that " [t]he Motion to Intervene appears to have been granted by the [commission]." Thus, the court rejects Global's first argument.

Second, notwithstanding the court's finding that the intervention petition satisfied the requirements of § 22a-19, Global argues that the intervenors failed to comply with General Statutes § 22a-19(a)(2) as amended by No. 13-186 of the 2013 Public Acts. Section 22a-19(a)(2) provides: " The verified pleading shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment or destruction of the public trust in air, water or other natural resources of the state and should be sufficient to allow the reviewing authority to determine from the verified pleading whether the intervention implicates an issue within the reviewing authority's jurisdiction. For purposes of this section, 'reviewing authority' means the board, commission or other decision-making authority in any administrative, licensing or other proceeding or the court in any judicial review." The September 30, 2014 ruling is the law of the case and this court will not revisit that decision. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013) (" The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . [When] a matter has previously been ruled [on] interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance" [internal quotation marks omitted]).

Third, in Sard Custom Homes, LLC v. West Hartford Planning & Zoning Commission, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-14-6048983-S (July 31, 2014, Berger, J.) [58 Conn. L. Rptr. 697], this court stated, " The amendment to § 22a-19 first requires the petition to 'contain specific allegations setting forth the nature of the alleged unreasonable pollution.' . . . By the unambiguous statutory language; see General Statutes § 1-2z ('[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes . . .'); the legislature required allegations of the nature of the impact--not allegations of the 'actual adverse impact.' . . .

" The amendment also requires the proposed intervenor to provide sufficient information to allow the reviewing authority to determine whether the issue is within its jurisdiction . . . [T]he amendment codifies our Supreme Court's ruling in Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002). In Nizzardo, the court held: 'Our construction of the pleading requirement of § 22a-19 is reasonable and consistent with our conclusion that intervention under that statute must implicate an environmental issue within the agency's jurisdiction. By requiring that intervention petitions under § 22a-19 allege facts setting forth the environmental claim that the intervenor intends to raise, we ensure that the agency will have the ability to determine upon a review of the petition whether the agency properly has jurisdiction over that environmental issue.'" (Citation omitted; emphasis in original.) In the present case, it seems evident the commission had sufficient information to make its determination.

Finally, while this court recognizes the requirement for such information where a proposed intervenor did not participate in the administrative process; see Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715-17, 563 A.2d 1339 (1989); it is duplicative where the intervenor participated in a full hearing during the administrative process and where the administrative agency ruled on the specific allegations. In Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276 n.9, 740 A.2d 847 (1999), the court noted that " [b]ecause the plaintiffs filed a notice of intervention at the commission hearings in accordance with § 22a-19(a), they had standing to appeal the environmental issues associated with that commission's decision." The Trust and Caprio meet that test and this court need not, for a third time, review their § 22a-19 intervention allegations.

III

" General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values The terms special permit and special exception are interchangeable . . . A special permit allows a property owner to use his...