Northeast Parking, Inc. v. Planning and Zoning Com'n of Town of Windsor Locks

• Decision Date: 16 December 1997
• Docket Number: No. 15684,15684
• Citation: 47 Conn.App. 284,703 A.2d 797
• Court: Connecticut Court of Appeals
• Parties: NORTHEAST PARKING, INC., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WINDSOR LOCKS. BRADLEY AIRPORT VALET PARKING, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WINDSOR LOCKS.

Page 797

703 A.2d 797

47 Conn.App. 284

NORTHEAST PARKING, INC., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WINDSOR LOCKS.

BRADLEY AIRPORT VALET PARKING, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WINDSOR LOCKS.

No. 15684.

Appellate Court of Connecticut.

Argued Sept. 25, 1997.

Decided Dec. 16, 1997.

Thomas W. Fahey, Jr., Windsor Locks, with whom, on the brief, was Richard T. Roznoy, East Granby, for appellants (intervening defendants).

William J. Sweeney, Jr., with whom, on the brief, was Thomas P. Griffen, New Britain, for appellees (plaintiffs).

Before FOTI, LANDAU and FRANCIS X. HENNESSY, JJ.

FOTI, Judge.

The intervening defendants, Park Plaza, Inc., and Winchester Partnership, appeal from the judgment of the Superior Court sustaining the administrative appeals of the plaintiffs, Northeast Parking, Inc., Bradley Air Parking Ltd. Partnership and Bradley Airport Valet Parking, Inc., with respect to an amendment to a special use permit granted to the intervening defendants by the defendant planning and zoning commission of the town of Windsor Locks (commission). ¹ Following oral argument in this court, we asked the parties, sua sponte, to brief and argue the question whether the plaintiffs were aggrieved by the commission's decision. Because we hold that the plaintiffs were not aggrieved, we dismiss the intervening defendants' appeal and remand the case to the Superior Court with direction to vacate the judgment and to dismiss the plaintiffs' appeal.

The following facts are relevant to this appeal. The plaintiffs and the intervening defendants are business competitors who operate valet parking services near Bradley International Airport in the town of Windsor Locks (town). The airport is also in the town. The plaintiffs' business operations, outdoor valet parking services, predate a 1985 ordinance prohibiting valet parking facilities in the town. The 1985 ordinance was in effect until 1987 when the commission promulgated regulations identifying the uses of land permitted in the town. Valet parking is not a use of land permitted in the town pursuant to the regulations. ²

In 1990, the commission amended the town zoning regulations by adopting §§ 407 and 408. ³ In January, 1991, pursuant to § 408, ⁴ the intervening defendants applied for and received a special permit for the adaptive reuse of a portion of a building that they own at 295 Ella Grasso Turnpike. The special permit allowed the intervening defendants to use a portion of their building for 800 indoor valet parking spaces.

In March, 1993, the intervening defendants sought approval from the commission to amend the special permit by increasing the number of valet parking spaces in their building by 348. The commission approved the amendment on June 14, 1993, and the plaintiffs appealed to the Superior Court. The Superior Court sustained the plaintiffs' appeal, deciding that the commission improperly approved the intervening defendants' application to amend the special permit in light of the fact that valet parking is not a permitted use under the applicable regulations. The intervening defendants appealed.

To appeal an administrative decision, the plaintiff must be aggrieved by the decision. See Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). "In the case of a decision by a zoning commission ... 'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1). The plaintiffs do not claim statutory aggrievement. Therefore, for the plaintiffs to have standing to bring an appeal, they must meet the test of classic aggrievement, which was recently summarized by our Supreme Court in Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 699 A.2d 142 (1997), and from which we quote at length.

"The test for aggrievement long recognized by this court is set forth in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). There we stated that [t]he fundamental test for determining 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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this 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. at 65, 475 A.2d 283]. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected. O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).... [State Medical Society v. Board of Examiners in Podiatry, supra, at] 299-300 . The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).... United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995).

"The second prong of the aggrievement test requires the plaintiff to demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law. See State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. at 300-01, 524 A.2d 636. United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. at 343, 663 A.2d 1011. [I]n considering whether a plaintiff's interest has been injuriously affected by [an administrative decision], we have looked to whether the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for [its] complaint.... Air Courier Conference v. Postal Workers, 498 U.S. 517, 523, 111 S.Ct. 913, 917-18, 112 L.Ed.2d 1125 (1991), citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990). United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, at 344-45, 663 A.2d 1011.

"Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. at 158-60, 699 A.2d 142.

Ordinarily, an allegation of adverse business competition is not sufficient to meet the classic aggrievement test. See Whitney Theatre Co. v. Zoning Board of Hamden, 150 Conn. 285, 189 A.2d 396 (1963). The court will, however, assume jurisdiction over claims of unfair or illegal competition. State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. at 302, 524 A.2d 636.

The following additional facts are necessary for our determination of whether the plaintiffs are aggrieved. The citations and recognizances filed in the Superior Court in each case allege in part: "The plaintiff, a valet parking lot operator and owner of real estate located in the Town of Windsor Locks, relied upon the above referenced zoning regulations when making investments and business decisions and has been aggrieved, and its property interests, specifically its businesses and real estate, are adversely affected by the decision of the Commission."

The commission and the intervening defendants also raised the question of aggrievement in the trial court by means of a motion to dismiss the appeal. The Superior Court, L. Sullivan, J., held a hearing on the issue of aggrievement on several days between April 4 and June 25, 1994. The Superior Court found the following facts. Both the plaintiffs and the intervening defendants are engaged in the business of valet parking. The plaintiffs conduct their business outdoors. The intervening defendants conduct their business indoors. The planning and zoning ordinances do not define valet parking. A defense witness defined valet parking as a parking activity whereby the customers' automobiles are checked in at the parking facility and the customers and their luggage are transported to the airport. When the customers return to the airport, they are met and taken to the parking facility to get their automobiles. The Superior Court took judicial notice of the fact that valet parking is an adjunct to almost every major airport in the United States.

The Superior Court also found that § 408 provides that the commission may permit, by special permit, " 'any use which it determines is consistent with the criteria set forth above ... even if such use is not otherwise permitted in Chapter IV of these Regulations....' " (Emphasis in original.) The intervening defendants, pursuant to the "any use" provision of § 408, obtained a special permit to valet park 800 vehicles within a building. In 1993, the intervening defendants, again pursuant to § 408, obtained an amendment to their permit that allowed them to expand their valet parking service by 348 parking spaces. The plaintiffs did not challenge the enactment of § 408 or the granting of the special permit allowing the intervening defendants to valet park 800 vehicles in their building. The plaintiffs did appeal from the granting of the amendment to the intervening defendants' special permit.

"It is well established that an appellate court will not retry the facts. ...