One Elmcroft Stamford, LLC v. Zoning Bd. of Appeals of the City of Stamford, AC 41208

CourtAppellate Court of Connecticut
Writing for the CourtELGO, J.
PartiesONE ELMCROFT STAMFORD, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL.
Docket NumberAC 41208
Decision Date14 June 2022

ONE ELMCROFT STAMFORD, LLC
v.

ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL.

No. AC 41208

Court of Appeals of Connecticut

June 14, 2022


Argued September 13, 2021

Procedural History

Appeal from the decision by the named defendant granting the application of the defendant Pisano Brothers Automotive, Inc., et al. for approval to locate an automotive repair business on certain real property, brought to the Superior Court in the judicial district of New Britain and transferred to the judicial district of Stamford-Norwalk, where the case was tried to the court, Hon. Taggart D. Adams, judge trial referee; judgment denying the plaintiffs appeal, from which the plaintiff appealed to this court, Sheldon, Elgo and Lavery, Js., which reversed the trial court's judgment and remanded the case to that court for further proceedings, and the defendant Pasquale Pisano et al., on the granting of certification, appealed to the Supreme Court, which reversed this court's judgment and remanded the case to this court for further proceedings. Reversed in part; further proceedings.

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Jeffrey P. Nichols, with whom was Amy Souchuns and, on the brief, John W. Knuff, for the appellant (plaintiff).

Gerald M. Fox III, for the appellees (defendant Pasquale Pisano et al.).

Elgo, Moll and Lavery, Js.

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OPINION

ELGO, J.

This administrative appeal returns to us on remand from our Supreme Court. One Elmcroft Stamford, LLC v. Zoning Board of Appeals, 337 Conn. 806, 256 A.3d 151 (2021) (Elmcroft II). In One Elmcroft Stamford, LLC v. Zoning Board of Appeals, 192 Conn.App. 275, 283-89, 217 A.3d 1015 (2019) (Elmcroft I), rev'd, 337 Conn. 806, 256 A.3d 151 (2021), this court concluded, inter alia, that General Statutes (Rev. to 2003) § 14-55[1] had not been repealed and required the defendant Zoning Board of Appeals of the City of Stamford (board) to consider the suitability of the location in question as a prerequisite to the granting of a certificate of location approval in accordance with General Statutes § 14-54. Following its grant of certification to the defendants, Pisano Brothers Automotive, Inc., and Pasquale Pisano; see One Elmcroft Stamford, LLC v. Zoning Board of Appeals, 333 Conn. 936, 218 A.3d 594 (2019); the Supreme Court concluded, as a matter of law, that § 14-55 had been repealed by Public Acts 2003, No. 03-184, § 10. See One Elmcroft Stamford, LLC v. Zoning Board of Appeals, supra, 337 Conn. 809-10. The court thus reversed the judgment of this court and remanded the matter to us with direction to consider the remaining claims of the plaintiff, One Elmcroft Stamford, LLC. See id., 826.

In accordance with that order, we now consider whether the Superior Court properly rejected the plaintiffs claims that the board (1) lacked subject matter jurisdiction to hear the application due to defective legal notice, (2) violated the plaintiff's right to fundamental fairness in administrative proceedings, (3) applied an improper legal standard in granting the certificate of location approval, and (4) failed to "consider or distinguish" a prior denial of a certificate of approval application for the location in question. We affirm in part and reverse in part the judgment of the Superior Court.

The relevant facts are largely undisputed. On June 1, 2016, Pisano Brothers Automotive, Inc., entered into a lease for a 6500 square foot parcel of real property known as 86 Elmcroft Road (property), which is located in the "M-G General Industrial District" in Stamford.[2]On that same date, Pisano, acting on behalf of Pisano Brothers Automotive, Inc., applied for a "used car dealer" license from the Department of Motor Vehicles (department).[3] In that application, Pisano listed himself as vice president of Pisano Brothers Automotive, Inc.

Pursuant to § 14-54, "[a]ny person who desires to obtain a license for dealing in or repairing motor vehicles" must first obtain "a certificate of approval of the location for which such license is desired" (location approval) from the applicable municipal zoning agency, which, in this case, was the board. In accordance with that statutory imperative, Pisano filed an application

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with the board for a location approval on July 14, 2016 (Pisano application), [4] on a preprinted form furnished by the board. The first page of that form asks applicants to provide the requested information "in ink" and then lists boxes for five distinct applications: "Variance(s)," "Special Exception," "Appeal from Decision of Zoning Enforcement Officer," "Extension of Time," and "Motor Vehicle"; Pisano checked "Motor Vehicle." Pisano then provided handwritten details regarding the location of the property, the owner of the property, and the applicant on page one of the form.

The second page of the application form contains a section titled "VARIANCES" and directs applicants to "complete this section for variance requests only. See a Zoning Enforcement Officer for help in completing this section." (Emphasis added.) Unlike the information provided on page one of the application, which is set forth in an upright block script, the variance section on page two contains the following in a strikingly larger and italicized cursive script: "APA TAB II #55 to allow a used car dealer to be located in an MG zone."[5] Although it is unclear from the record exactly who made that notation on the application form, Pisano explained at the subsequent public hearing that, in preparing the application, he had met with the city's land use officials, including the zoning enforcement officer, who worked with him to complete the application. That testimony is confirmed by the fact that the variance section of the application submitted by Pisano is stamped "ZONING ENFORCEMENT APPROVAL For Submission to Zoning Board of Appeals" and contains the signature of that official.[6]

Section 19. B of the Stamford Zoning Regulations (regulations) governs variance applications, and § 19.B.1 memorializes the board's "power after public notice and hearing to determine and vary the application of these regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values."[7] Notably, § 19.B.3.d authorizes the board to refer variance applications to the Stamford Planning Board, which, "in reviewing such matters, shall set forth its opinion as to whether or not the proposed use or feature is in reasonable harmony with the various elements and objectives of the Master Plan and the comprehensive zoning plan . . . ." Stamford Zoning Regs., § 19.B.3.d (2). The regulations also authorize the board to refer variance applications "to other [a]gencies." Stamford Zoning Regs., § 19.B.3.e.

Upon receiving the Pisano application, the board referred it to other Stamford land use agencies "[i]n accordance with [§] 19 of the [regulations]," including the Planning Board and the Engineering Bureau. Those referrals expressly sought "comments" on what the board labeled a variance request.[8]

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In a subsequent correspondence dated August 4, 2016, the Engineering Bureau informed the board that it had "reviewed plans for a variance to allow for a used car dealer to be located in the M-G Zone" and that it "has found the [proposed use] will not result in any adverse drainage impacts as there will be no increase in impervious coverage." The Engineering Bureau thus indicated that it "does not object to [the Pisano] application proceeding with the approval process with the following condition: New concrete curb and sidewalk shall be installed along the frontage of the property." The Engineering Bureau concluded by noting that "[currently there is no sidewalk at this location and adjacent properties are equipped with sidewalks. Measures shall be taken to prevent vehicles from parking within the City [right-of-way]."

The board also received a letter from the Planning Board dated September 8, 2016, which stated that it had reviewed the Pisano application "in accordance with the provisions of the Stamford Zoning Regulations." The letter continued: "The Planning Board unanimously recommended DENIAL of [the Pisano application]. It is the opinion of the [Planning] Board that the proposed application does not keep with the character of the neighborhood and finds these requests are not consistent with the 2015 Master Plan Category #9 (Urban Mixed-Use)."[9] (Emphasis in original.)

The board scheduled a public hearing on the Pisano application and published legal notice in a local newspaper on September 1 and 7, 2016.[10] The board then held the public hearing on the Pisano application on September 14, 2016. At its outset, Chair Claire D. Friedlander read the correspondence from the Engineering Bureau and the Planning Board into the record, which began by noting that the Engineering Bureau "has reviewed the plans for a variance to allow for a used car dealer to be located in the MG zone . . . ."[11]

Attorney Gerald M. Fox III then appeared on behalf of the applicant and explained that Pisano Brothers Automotive, Inc., had been in business as an automobile repair shop in Stamford for more than twenty years. Fox further indicated that "[t]he used car dealer aspect of this application is not one that is something that [the applicant] uses very often .... [Pisano Brothers Automotive, Inc.] probably sells . . . less than five [cars] a year." Pisano also appeared at the hearing and stated that, although there would be occasional used car sales, the primary business conducted on the property would be general automotive repair.[12] Pisano confirmed that the property contained a total of six parking spaces, as depicted on an "improvement location survey" that he submitted to the board. Pisano also confirmed that his business provided towing services for its customers "from eight [a.m.] to five [p.m.]" but was "not triple AAA." Pisano acknowledged...

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