Podzunas v. Town of Wolcott, No. CV03-0177389S (CT 8/18/2005)
| Decision Date | 18 August 2005 |
| Docket Number | No. CV03-0177389S,CV03-0177389S |
| Court | Connecticut Supreme Court |
| Parties | Albert Podzunas v. Town of Wolcott Opinion No.: 89973 |
Three zoning appeals have been consolidated each naming as the plaintiff, Albert E. Podzunas, Jr. and each involving the same parcels of land. In the first case, docket number CV03-0177389S the original defendants were the Town of Wolcott, and its Planning and Zoning Commission. Thereafter Housewright Development, Inc. and New Samaritan Development Corporation successfully moved to intervene as additional defendants in the case. New Samaritan is the owner of the property which is the subject of the zone change and Housewright Development is the contract purchaser of it.
The first appeal concerned the adoption of a change in the zoning map of the Town of Wolcott by removing the Planned Residential Development (PRD) overlay designation for an area of approximately fifteen acres in the vicinity of Potuccos Ring Road and Wolcott Road, formerly a portion of Wolcott Hills PRD and by changing from General Commercial (CG) District to Residential (R-30) an area of approximately six acres adjacent to the fifteen-acre parcel and also owned by New Samaritan. Prior to the overlay, the fifteen-acre parcel was also in the R-30 district.
The request to amend was initiated by the Planning and Zoning Commission of Wolcott and was heard at a public hearing on February 5, 2003 and approved by the Commission after the close of the public hearing on February 5, 2003. The appeal by Albert E. Podzunas was filed on February 21, 2003.
A hearing on aggrievement was held by the court on August 2, 2005. Mr. Podzunas identified a warranty deed to Yalesville Development, LLC dated September 6, 2002 and testified that he was the sole owner and member of that LLC. He testified that the property described therein was within 100 feet of the land that the two zone changes of February 5, 2003 concerned.
He thereafter identified as Plaintiff's Exhibit 2 a quitclaim deed dated September 28, 2004 from Yalesville Development, LLC to Spectrum Square, LLC. He further testified that the parcel involved in that deed was the same as was acquired by Yalesville Development on September 6, 2002. Again he described himself as the sole owner of Spectrum Square, LLC.
Immediately counsel for New Samaritan moved to dismiss all three appeals because Mr. Podzunas was not the owner of the property within 100 feet of the subject property.
The court will deal with that motion and the general issue of aggrievement at the same time.
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996)
(Internal quotation marks omitted.) R&R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 569-70, 684 A.2d 1207 (1996). (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). In Loew v. Falsey, the owner of the building was E.M. Loew. The court found that while the corporation may have held the legal title to the premises, E.M. Loew owned and controlled the corporation and was the beneficial owner. Id. See Infante v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 215062 (January 23, 1986, Jacobson, J.) (as sole stockholder of corporation, plaintiff is beneficial owner of corporation's real property and thus is aggrieved by agency's decision).
On the basis of the limited testimony in this case, the court finds that the plaintiff in each of these appeals is an aggrieved person and is entitled to file these appeals pursuant to Connecticut General Statutes §8-8(a)(1) and Connecticut General Statutes §8-8(b).
Some background is necessary for an understanding of this appeal. In 1994, the Wolcott Planning and Zoning Commission approved a development proposal for what was then known as Wolcott Hills Planned Residential District comprised of 200+ acres. The plan was conceptual in nature and required specific site plan approval for each phase of construction. The development mix included single-family, affordable housing pursuant to Connecticut General Statutes §8-30g and affordable age restricted senior housing. By 1996 all single-family housing had been built.
As of December 4, 1996, the only undeveloped part of the original development property was a 40-unit senior, attached housing complex on what was known as Parcel C consisting of approximately 11 acres. That property was then owned by the defendant New Samaritan Development Corporation. In 1996 New Samaritan and the Town entered into an agreement that provided that if construction on the 40-unit senior attached housing on Parcel C is not commenced by December 4, 2004, the property would be conveyed to the Town.
Sometime in 2002, Samaritan contracted with Housewright Development, Inc. for the 15-acre parcel contingent on the Commission's changing the requirement of 40 affordable senior attached housing units. Housewright then made an application for a 40-unit detached senior housing development without the requirement that it be affordable.
The property in question was comprised of 2 parcels. One was a 15-acre parcel which included the previously described Parcel C which was zoned Planned Residential Development and a second adjoining piece comprising 6 acres which was then zoned General Commercial. The Planned Residential Development designation is an overlay over the R-30 district. New Samaritan is the owner of both pieces. Housewright argued that its proposal could be entertained without a zone change but the Commission disagreed.
On its own the Commission published a notice of a public hearing for February 5, 2002, to remove the overlay designation for the 15-acre parcel and to change the zone of the six-acre parcel from General Commercial to R-30.
ZONE MAP — PROPOSED AMENDMENTS. "(a) By removing the Planned Residential Development (PRD) Overlay designation from an area of approximately 15 acres in the vicinity of Potuccos Ring Road and Wolcott Road, formerly a portion of the Wolcott Hills PRD, which portion is currently owned by New Samaritan Development Corp. (b) By changing from General Commercial GC District to Residential R-30 District an area of approximately 6 acres in the vicinity of Potuccos Ring Road and Wolcott Road, being the remaining portion of that parcel currently owned by New Samaritan Development Corp. referenced in item (a) above."
At the hearing, the plaintiff's present counsel was not present but presented a letter describing the plaintiff's opposition to the changes. He now alleges in his brief at page 10 that "these two changes are significant changes and are of great concern to the plaintiff." No further explanation of that concern was contained in the brief and in the plaintiff's trial testimony he did not further explain his concern.
At the hearing, Anthony Panico, the Town Planner, stated that the PRD was an overlay designation and that the underlying R-30 zone still remained. He further stated that the 6-acre parcel in the General Commercial zone could not be developed because its only access to a highway was through a residential zone which was not permissible.
Counsel for Housewright spoke and described the problem with its earlier application on the basis that the PDR regulation no longer existed. It was the recommendation of the Town Planner that the Commission remove the overlay designation for the 15-acre parcel, change the 6-acre parcel to R-30 and allow Housewright to apply for a special permit to build 40 detached senior housing units which would conform to the Town's 1994 decision to have senior housing on the 11.83-acre parcel.
Counsel for Samaritan also spoke in favor of the changes and explained why it could not develop the property for subsidized affordable senior housing, including a lack of HUD funding, the lack of qualified buyers who could comply with HUD requirements and the change in market conditions favoring detached units.
One person, Keith Mahler, opposed the zone change. His concerns were answered by the planner, Mr. Panico, who said the original PRD plan had already been modified two or three times, that PRD regulations no longer existed and that allowing development under the R-30 zone would meet the interest of the original PRD. Panico also stated that the Commission never envisioned having high-density apartments on the site, because of the incompatibility of a multi-story building in an area of single-family houses.
The hearing was closed and later that night the Commission unanimously...
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