Opinion
CV186076981S
04-09-2019
Bayview Associates, LLC v. Planning & Zoning Commission, City of Bridgeport et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Radcliffe, Dale W., J.
MEMORANDUM OF DECISION
RADCLIFFE, J.
FACTS
The Defendant, Domus Realty Group, LLC, is the owner of property known as 225-245 Boston Avenue, Bridgeport. The parcel consists of approximately 1.43 acres. A commercial building, currently used as a self-storage facility and a furniture store, is located on the property (ROR 1; ROR 2).
225-245 Boston Avenue is situated in two Residential zones. A portion of the property is zoned Residence B (R-B), and a portion is zoned Residence C (R-C). The front of the property, adjacent to Boston Avenue, is zoned R-B, while the rear of the property is designated as an R-C Zone (ROR 18, p. 2).
The Bayview Shopping Center is located to the west of the property (ROR 4; ROR 7). Domus Realty Group, LLC has a recorded easement over the shopping center, which permits access to the rear of its property (ROR 18, p. 5). Abutting properties carry a zoning classification of Office Retain General (OR-G) (ROR 2; ROR 18, p. 5-8). Furniture sale and self-service storage are permitted uses in an OR-G Zone (See Table 2.A, Bridgeport Zoning Regulations).
No change in the use of the property is contemplated by Domus Realty Group, LLC.
On May 25, 2018, Domus Realty Group, LLC filed an application with the Bridgeport Planning and Zoning Commission, seeking to designate all of 225-245 Boston Avenue as an Office Retain General (OR-G) Zone (ROR 1). A public hearing concerning the requested change in zoning classification was noticed for June 25, 2018 (ROR 10).
On June 1, 2018, Dennis Buckley, in his capacity as clerk of the Bridgeport Planning and Zoning Commission, sent a memorandum (ROR 13) to City Clerk Lydia N. Martinez and Assistant Clerk Frances Ortiz. The memo noted the date of the public hearing, and stated "pursuant to Ct. General Statute 8-3, please make available for public review the referenced zone change" (ROR 13).
Section 8-3(a) reads:
Such zoning commission shall provide for the manner in which regulations under section 8-2 or 8-2j and the boundaries of zoning districts shall be respectively established or changed ... A copy of the proposed regulation or boundary shall be filed in the office of the town, city or borough clerk ... in such municipality ... for public inspection at least ten days before such hearing ...
At the June 25, 2018 public hearing, Domus Realty Group, LLC argued that the change in zoning classification to Office Retail General (OR-G) would be consistent with the existing use of the property, and consistent with the classification of neighboring properties. The rezoning would also eliminate the division between two Residential zones, which are both incompatible with the use of 225-245 Boston Avenue, and the use of surrounding properties.
A representative of Bayview Shopping Center argued that current zoning classifications should be preserved. It was claimed that all uses permitted in an OR-G zone could be sited on the property, and that the zoning status of 225-245 Boston Avenue was not changed during a comprehensive rezoning of the City of Bridgeport (ROR 18, p. 9-10).
Following the close of the public hearing, the Commission voted to approve the requested change in zoning classification (ROR 17, p. 9; ROR 18, p. 11-15). Two reasons were provided in support of the action: (ROR 16)
1. The change from R-B to OR-G is consistent with the abutting Shopping Center property.
2. The existing retail service business will now be compliant with the Zoning Regulations of the City of Bridgeport, as well as the Master Plan of Conservation and Development.
Notice of the decision was published in the July 1, 2018 edition of the Connecticut Post (ROR 15), and this timely appeal by Bayview Associates, LLC followed.
AGGRIEVEMENT
The Plaintiff, Bayview Associates, LLC, is the record owner of 161 Boston Avenue, Bridgeport, having acquired title via a quitclaim deed from Bayview Shopping Center Associates (Ex. 1). The deed is recorded at Volume 7976, pages 79-80, of the land records of the City of Bridgeport.
161 Boston Avenue abuts 225-245 Boston Avenue, the property which is the subject of the change in zoning classification voted by the Planning and Zoning Commission.
Bayview Associates, LLC has owned 161 Boston Avenue continuously, throughout the time 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); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508 (1968). 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 his interest in the property throughout the appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
Aggrievement falls into two basic categories— statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by virtue of legislative fiat, and is a legislative 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 a party standing to appeal, without the necessity of demonstrating actual harm 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 aggrievement must demonstrate a personal and legal interest in the decision appealed from, as distinct from a general interest, such as all members of the community as a whole, and 2) he must prove that the interest has been specifically and injuriously affected by the decision which generated the appeal. 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 include:
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, Bayview Associates, LLC, the owner of 161 Boston Avenue, Bridgeport, owns land which abuts the property which is the subject of the requested change in zoning classification.
It is therefore found, that the Plaintiff has satisfied the test for statutory aggrievement, and the court has jurisdiction to entertain this appeal.
Because the plaintiff, Bayview Associates, LLC, is found to be statutorily aggrieved, it is not necessary to consider any claim of classical aggrievement.
STANDARD OF REVIEW— CHANGE OF ZONING CLASSIFICATION
When it acts to amend its regulations, or to change the zoning classification of property, a planning and zoning commission sits in a legislative capacity, rather than in an administrative or quasi-judicial capacity. D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 450 (1991); First Hartford Realty Corporation v. Planning & Zoning Commission, 165 Conn. 533, 540 (1973).
When acting as a legislative body, the commission is the formulator of public policy, and its discretion is much broader than that of an administrative board, or one exercising a quasi-judicial function. Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 543 (1991); Parks v. Planning & Zoning Commission, 178 Conn. 657, 660 (1979); Malafronte v. Planning & Zoning Board, 155 Conn. 205, 209 (1967). In the exercise of that discretion, a commission is free to amend its regulations and/or its zoning map, whenever time, experience and reasonable planning for contemporary or future conditions reasonably indicate the need for a change. Kaufman v. Zoning Commission, 222 Conn. 122, 150 (1995). Such discretion is vested in a municipal zoning authority, because it is closest to the circumstances and conditions which create the problem, and shape the solution. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 470 (1982); Stiles v. Town Council, 159 Conn. 212, 219 (1970).
Courts will not interfere with local legislative decisions, unless the action taken is contrary to law, arbitrary, illegal, or an abuse of discretion. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265 (1983). Conclusions must be upheld, if they are supported by substantial evidence in the record. Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541 (1987). The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
Where, as here, the Commission has stated reasons for its decision, a court should not go beyond the reasons supplied by the agency, but should only decide whether any reason given in support of the decision is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71 (2008).
BRIDGEPORT PLANNING AND ZONING COMMISSION COMPLIED WITH THE NOTICE PROVISION OF SECTION 8-3(a) OF THE GENERAL STATUTES
In its appeal, the Plaintiff, Bayview Associates, LLC, challenged the action of the Bridgeport Planning and Zoning Commission, claiming that the Commission’s decision was "illegal, arbitrary, capricious and an abuse of the powers vested in the P&Z."
However, both in its trial brief and at trial, Bayview Associates, LLC abandoned all claims, except its insistence that the Commission failed to comply with the provisions of S. 8-3(a) of the General Statutes.
A failure to comply with the filing mandate of S. 8-3(a), deprives a municipal planning and zoning commission of jurisdiction, and invalidates any zoning regulation or change in zoning classification subsequently adopted. Scovil v. Planning & Zoning Commission, 155 Conn. 12, 14-15 (1967). Strict compliance with the S. 8-3(a) statutory procedure is a prerequisite to any valid change in zoning boundaries. State ex rel Capruso v. Flis, 144 Conn. 473, 481 (1957). Because S. 8-3(a) implicates subject matter jurisdiction, any failure to comply with its provisions cannot be waived, and may be raised at any stage of the proceedings. Lewis v. Planning & Zoning Commission, 275 Conn. 282, 390 (2005); Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 374, 378 (1992); Bombero v. Planning & Zoning Commission, 17 Conn.App. 150, 153-55 (1988).
In the initial Return of Record, the only document concerning compliance with S. 8-3(a) was a one-page memorandum dated June 1, 2018 from Dennis Buckley (ROR 13).
A Motion to Supplement the Record, pursuant to S. 8-8(k) of the General Statutes was made. The motion was granted.
Section 8-8(k), C.G.S.— "The court shall review the proceedings of the board, and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it pursuant to S. 8-7a or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal."
Following a finding that additional evidence was necessary for the equitable disposition of the appeal, the Return of Record was supplemented, by a deposition of Deputy City Clerk Frances Ortiz. The deposition was conducted on March 19, 2019 (See Supplemental Return of Record).
In addition to the June 1, 2018 memo authored by Dennis Buckley, Ms. Ortiz produced a public hearing notice (Supplemental ROR 2) which was received on June 5, 2018, and a map, regarding the proposed change in zoning classification, which was appended to the Buckley memorandum (Supplemental ROR 3). A copy of the application for a change of zoning classification was also received, along with a metes and bounds description of 225-245 Boston Avenue (Supplemental ROR 3; Deposition of Frances Ortiz, p. 7-11).
All of the materials, including the map and the metes and bounds description, were retained in a bin behind the counter, in the City Clerk’s Office, and were available for inspection during business hours.
Based on the contents of the Supplemental Return of Record and the deposition of Frances Ortiz, it is found that all of the materials referenced in the Supplemental Return of Record were in the Bridgeport City Clerk’s Office and were available for public inspection at least ten (10) days prior to the June 25, 2019 public hearing.
The purpose of the procedural requirements of S. 8-3(a) is to fairly and sufficiently apprise those who may be affected by the proposed action of the planning and zoning commission of the nature and character of the proposed action, so as to enable those persons to intelligently prepare for the statutorily mandated public hearing. Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 310 (1968). Where neither a map, nor a boundary description of any kind is on file with the municipal clerk, the notice is insufficient, and the planning and zoning commission is without jurisdiction to consider the change in zoning classification or any proposed change in the zoning regulations. Bombero v. Planning & Zoning Commission, supra, 154-55. Where the notice filed pursuant to S. 8-3(a) does not contain a metes and bounds description, and merely makes reference to a map on file in another municipal office, the notice is inadequate. Buddington Park Condominium Associates v. Planning & Zoning Commission, 125 Conn.App. 724, 733 n.4 (2010); Lauver v. Planning & Zoning Commission, 60 Conn.App. 504, 511 (2000).
In Bridgeport v. Town Plan & Zoning Commission, 277 Conn. 268, 275 (2006), the Connecticut Supreme Court considered the specificity of the notice required to satisfy the S. 8-3(a) requirement. In that case, the Fairfield Town Plan & Zoning Commission sought to rezone property owned by the City of Bridgeport, which was located in the Town of Fairfield. The property, which comprised a thirty-six (36) hole golf course, the Fairchild Wheeler Golf Course, was described in the notice as follows:
"Park Avenue/Easton Turnpike application to amend Zoning Map and Zoning Districts by the establishment of a AAA Zone on land presently zoned R-3 and R-2. The property is approximately 320 acres in size and is known as Fairchild Wheeler Golf Course and is shown as parcel 1 on Tax Assessor’s Map 24 and parcel 2 on Tax Assessor’s Map 11."
Despite the size and specific location of the property contained in the notice, the Supreme Court determined that the notice was not sufficient to comply with General Statutes S. 8-3(a). The court held that merely including the address of the property, along with a reference to a map in another office, was not sufficient, and that the Town Plan & Zoning Commission lacked jurisdiction to entertain the proposal. Bridgeport v. Town Plan & Zoning Commission, supra, 279-80.
Here, both a metes and bounds description of 225-245 Boston Avenue, and a map of the property where present in the Office of the City Clerk. The material was available, upon request for public inspection, and was located in an accessible area behind the office counter. The presence of both the map and the metes and bounds description in the office, distinguishes this situation from that which confronted the Supreme Court in Bridgeport v. Town Plan & Zoning Commission, supra .
In MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406 (2013), the Appellate Court found that the filing of a metes and bounds description of property to be included in a proposed Design Business District, along with the address of the property and the approximate area, was sufficient to comply with the requirement of S. 8-3(a). The notice was deemed sufficient, even though the application itself and the zone change map were not in the Town Clerk’s office. Interested persons were directed, in the notice, to the zoning office, where the map and application were lodged. MacKenzie v. Planning & Zoning Commission, supra, 447-48.
Here, a metes and bounds description of the property, a map of 225-245 Boston Avenue, and the application for a change of zoning classification were all on file in the City Clerk’s office. Therefore, the Bridgeport Planning and Zoning Commission had the Authority to hear and decide the change of zoning classification application filed by Domus Realty Group, LLC.
CONCLUSION
The appeal of the Plaintiff, Bayview Associates, LLC, is DISMISSED.