International Investors v. Fairfield Town Plan & Zoning Commission

• Decision Date: 14 February 2019
• Docket Number: FBTCV186074152S
• Citation: International Investors v. Fairfield Town Plan & Zoning Commission, FBTCV186074152S (Conn. Super. Feb 14, 2019)
• Court: Connecticut Superior Court
• Parties: INTERNATIONAL INVESTORS v. FAIRFIELD TOWN PLAN & ZONING COMMISSION et al.

INTERNATIONAL INVESTORS v. FAIRFIELD TOWN PLAN & ZONING COMMISSION et al.

No. FBTCV186074152S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

February 14, 2019

UNPUBLISHED OPINION

RADCLIFFE, J.

FACTS

The Defendant, Fairfield Commons, LLC, is the owner of property known as 1125 Kings Highway, Fairfield. The parcel consists of approximately 3.6 acres, and is located in a Design Commercial District.

1125 Kings Highway is bounded by the Metro North Railway to the west, and by a Super Stop and Shop Supermarket to the south. The property has street frontage on Kings Highway Cutoff to the east.

This property has been the subject of development proposals since 2005, when the Defendant, Fairfield Town Plan and Zoning Commission, denied a proposal for a shopping center on the undeveloped parcel. Following that denial, the Defendant Fairfield Commons, LLC, filed an application for a special permit with the Town Plan and Zoning Commission, seeking permission to construct a 36, 000-square-foot retail building. A coastal area management (CAM) site plan was also submitted.

On April 11, 2006, the Fairfield Town Plan and Zoning Commission voted, 6-1, to approve the special permit and coastal site plan applications. The special permit was subject to ten (10) specific conditions.

Approval of the proposal generated an appeal to the superior court, which precluded any development of 1125 Kings Highway for three (3) years.

On April 8, 2009, the Connecticut Supreme Court dismissed the appeal (Lamar Company of Connecticut, LLC v. Fairfield Town Plan & Zoning Commission, SC18204), effectively removing a potential impediment to development.

Because a timely appeal of the action of the Fairfield Town Plan and Zoning Commission was taken in 2006, and that appeal was not resolved until 2009, the effective date of the approval corresponds to the dismissal of the appeal on April 8, 2009. Bochanis v. Sweeney, 148 Conn.App. 616, 633-34 (2014); Dean-Moss Family Limited Partnership v. Five Mile River Works, Inc., 130 Conn.App. 363, 375 (2011); Fromer v. Two Hundred Post Associates, 32 Conn.App 799, 802 (1993).

Because the proposal submitted by Fairfield Commons, LLC, involves new construction in a Design Commercial District, a special permit is required (see Section 12.0, Fairfield Zoning Regulations).

On the date of approval, April 8, 2009, Regulation 2.23.5 of the Fairfield Zoning Regulations read:

Approval or approval with modifications shall constitute approval conditioned upon completion of the proposed use in accordance with the Zoning Regulations within a period of two (2) years from the date of such approval.

Section 2.23.6(a) of the Regulations provided:

Upon failure to complete within such two (2) year period, the approval or approval with modifications shall become null and void, unless an appeal to court is filed within such period, whereupon the two (2) year period shall commence from the date of the final determination of such appeal. Three (3) extensions of such period for an additional period not to exceed one (1) year may be granted ...

On April 8, 2009, the date of approval, Section 8-3(i) and Section 8-3(m) of the General Statutes governed site plan approvals. Section 8-3(i) declares:

In the case of a site plan approved after October 1, 1984 ... all work in connection with such site plan shall be completed within five years after the approval of the plan ... "work" for purposes of this subsection means all physical improvements required by the approved plan.

Section 8-3(m) reads:

Notwithstanding the provisions of this section, any site plan approval made under this section prior to July 1, 2011, that has not expired prior to May 9, 2011 ... shall expire not less than nine (9) years after the date of such approval.

Nine (9) years after April 8, 2009 is April 8, 2018.

Five (5) years after April 8, 2009 is April 8, 2014.

On February 8, 2011, the Defendant, Fairfield Town Plan and Zoning Commission, amended Section 2.23 of its Regulations (ROR 3). The new Regulation 2.23 conformed the municipal zoning regulations with the time periods provided in the General Statutes. The Regulation as amended reads:

Whenever a public hearing on an application is to be held pursuant to the requirements of the foregoing sections of the Zoning Regulations, the procedure for which is set forth in Section 2.39 of the Zoning Regulations, the Commission shall proceed in accordance with the requirements of the Connecticut General Statutes.

On February 15, 2011, in the wake of this change in the Fairfield Zoning Regulations, Fairfield Commons, LLC requested confirmation from the Town of Fairfield that the expiration date of its site plan and special permit was April 8, 2014. Written confinnation was provided by the Town of Fairfield.

Because development of 1125 Kings Highway had not begun, on March 19, 2018, Fairfield Commons, LLC requested of the Town Plan and Zoning Commission extensions of the special permit and coastal site plan approvals until April 8, 2023 (ROR 1). The owner of Stop and Shop Plaza, International Investors, objected to the extension (ROR 2).

International Investors claimed that the special permit approval expired based upon the municipal regulations in effect prior to the February 2011 Amendment. It also claims that the Amendment has only prospective affect, and does not effect the action taken on April 11, 2006.

The Plaintiff also maintains the Section 8-3(i) and Section 8-3(m) of the General Statutes, to the extent that they are applicable, apply only to the coastal area management (CAM) site plan, and not to the special permit component of the approval.

On April 9, 2018, the Fairfield Planning Director, James Wendt, sent an email and a memorandum (ROR 3). He opined that the Town Plan and Zoning Commission could extend the permit issued for 1152 Kings Highway Cutoff for another period of five (5) years. He declared that the Commission’s Amendment to Section 2.23 of the Regulations in February of 2011, extended the approvals to April 8, 2014, and that a subsequent act of the General Assembly, effective May 9, 2011 (Public Act 11-5), provided for a nine (9) year extension by operation of law, making the expiration date April 8, 2018 (ROR 3).

On April 10, 2018, the Fairfield Town Plan and Zoning Commission voted, unanimously, to extend the approval for an additional five (5) years, or until April 8, 2013 (ROR 6, p. 6; ROR 7). No collective reasons were given by the Commission in support of its action.

From that decision, the Plaintiff, International Investors, brings this appeal.

AGGRIEVEMENT

The Plaintiff, International Investors, a general partnership, acquired title to 1206 Kings Highway Cutoff in 1994, via a quitclaim deed from four (4) grantors, The Estate of Peter Dinardo, Alfred Lenoci, Donald Sherman and Matthew Vetro (Ex. 2). The deed was recorded at Volume 1358, Pages 11-13, of the land records of the Town of Fairfield.

Property was also acquired from Tal Realty Company, as Trustee for International Investors and Tal Realty Co., Inc., in a warranty deed dated May 27, 1997, and recorded at Volume 1704, Page 94, of the Fairfield Land Records (Ex. 1).

1260 Kings Highway Cutoff abuts 1125 Kings Highway, the property which is the subject of the April 10, 2018 action of the Fairfield Town Plan and Zoning Commission. International Investors has owned the property at all times, while this appeal has been pending.

Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an appeal. Stauton v. Planning & Zoning Commission, 271 Conn. 153, 157 (2004); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989). The burden of proving aggrievement rests with the party claiming to be aggrieved. London v. Zoning Commission, 149 Conn. 282, 284 (1962). One claiming aggrievement must sustain its interest in the property throughout an appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).

Aggrievement falls into two (2) basic categories— statutory aggrievement, and classical aggrievement.

Statutory aggrievement exists by virtue of legislative fiat, and is a recognition of a right to appeal without regard to an analysis of the facts of a particular case. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665 (2006); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190 (1992). One claiming statutory aggrievement must show that a particular statute grants standing to appeal, without the necessity of demonstrating actual injury based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156 (2005); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87 (2003).

Classical aggrievement, on the other hand, requires a party to satisfy a well-established two-fold test: 1) the party claiming to be aggrieved must demonstrate a personal and legal interest in the decision appealed from, as distinct from a general interest such as a concern of all members of the community as a whole, and 2) the party must prove that the interest has been specifically and injuriously affected by the decision of the land use agency. Cannavo Enterprises v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).

Section 8-8(1) of the General Statutes defines "Aggrieved person" to mean:

... 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 ...

The Plaintiff, International Investors, owns 1206 Kings...