Opinion
No. CV05 400 92 16
June 13, 2007
MEMORANDUM OF DECISION
The plaintiff, European Investment Co., LLC (European), appeals from the decision of the defendant, the Bridgeport zoning board of appeals, granting a variance for the defendant, Connecticut Transfer Company, LLC. The variance permitted Connecticut Transfer to operate a construction debris transfer station on its property.
This action was consolidated for the purpose of trial with two other appeals from the board's decision, NW Bridgeport v. Zoning Board of Appeals, Docket No. CV 05 4008988, and Middlemass v. Zoning Board of Appeals, Docket No. CV 05 4009123. There was a single return of record filed in the NW Bridgeport appeal on July 20, 2005, and two supplemental returns of record filed in the Middlemass action on August 7, 2006 and January 3, 2007. Any references to "Return of Record" in this decision refer to that filed in the NW Bridgeport action, while "Sup. 1," will refer to that filed in the Middlemass action on August 7, 2006, and "Sup. 2" will refer to that filed in the Middlemass action on January 3, 2007.
Connecticut Transfer is the contract purchaser of unit #1 at 560 North Washington Avenue, Bridgeport, a commercial condominium complex located in a light industrial (I-LI) zone. (Appeal, ¶ 2.) On February 14, 2005, Connecticut Transfer applied to the zoning board for a variance to allow it to operate a transfer station for construction debris within an existing building on the property. (Return of Record [ROR], Petition 2/14/05.) The transfer station, which would receive, sort and export debris from construction sites, would require approximately 186 truck trips per day, well in excess of the ten per day threshold constituting a high impact use within an I-LI zone; see § 7-1-3 of the Bridgeport zoning regulations. (ROR, Traffic Study 2/07/05, p. 6.) A high impact use, however, is prohibited in an I-LI zone by §§ 7-1-2 and 7-3-2 of the Bridgeport zoning regulations, which precipitated Connecticut Transfer's petition for a variance. (ROR, Hearing Transcript [Tr.] 5/11/05, p. 2.) The property was formerly zoned heavy industrial and the improvements thereon were constructed for heavy industrial use; specifically, the building comprising much of the property is 89,000 square feet in area and is entirely open aside from support columns. (ROR, Tr. pp. 1-4.) The petition was scheduled to be heard on March 8, 2005, but was rescheduled for April 12, 2005. (ROR, Notice of Hearing 3/30/05.)
A previous application was filed on September 21, 2004, and was scheduled for a hearing before the board on November 9, 2004, continued until December 14, 2004, and continued again until January 11, 2005. The application was then withdrawn and resubmitted on February 14, 2005, which is the application currently at issue. (Return of Record, Petition 2/14/05; Sup. 1, Hearing Agendas 12/14/04 and 1/11/05.)
Section 7-1-3(a)(2) of the Bridgeport zoning regulations provides in relevant part: "In the Light Industrial Zone only, High Impact Uses include those uses which exceed one or more of the following performance thresholds or match the following performance descriptions:
(a) Truck Traffic Generation: Uses with more than 10 Average Daily Weekday Trips (ADWT) of Heavy Trucks. ADWT is the average daily one-way trips in both directions for a weekday (Monday — Friday)."
"Section 7-1-2 provides in relevant part: "(d) Prohibited Uses: Uses listed with an "N" in the Use Tables, are prohibited."
Section 7-3-2 lists an "N" next to high impact uses within "Waste-Processing and Transfer" operations.
Notice for the April 12, 2005 meeting was properly published in a local newspaper pursuant to General Statutes § 8-7d. (ROR, Notice of Hearing 3/30/05.) Connecticut Transfer's petition for a variance was marked on the agenda for the April 12 meeting, but was not heard on that date because of time constraints and was recessed until May 11, 2005. (Sup. 2, p. 20.)
Section 8-7d provides in relevant part: "(a) In all matters wherein a formal petition [or] application . . . must be submitted to a . . . zoning board of appeals under this chapter . . . and a hearing is required or otherwise held on such petition [or] application . . . [n]otice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing. In addition to such notice, such commission, board or agency may, by regulation, provide for additional notice. Such regulations shall include provisions that the notice be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both. For purposes of such additional notice, (1) proof of mailing shall be evidenced by a certificate of mailing, and (2) the person who owns land shall be the owner indicated on the property tax map or on the last-completed grand list as of the date such notice is mailed . . ."
Connecticut Transfer's variance petition was heard at the May 11 meeting. Connecticut Transfer's counsel presented evidence in favor of the petition and there was no opposition. (ROR, Tr.) The zoning board, without specifying its reasons for doing so, conditionally granted the variance on May 15, 2005, from which decision European appeals to this court. (ROR, Notice of Decision 5/15/05.) European alleged that it is the holder of a mortgage on 397 North Washington Avenue, located within 100 feet of the subject property. (Appeal, ¶ 1.)
"[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). Appeal from the decision of a zoning board is governed by General Statutes § 8-8. Subsection (b) provides in relevant part: "[A]ny person aggrieved by any decision of a [zoning] board . . . may take an appeal to the [S]uperior [C]ourt for the judicial district in which the municipality is located." General Statutes § 8-8(b). "Aggrieved person" is defined as "a person aggrieved by a decision of a board . . . includ[ing] 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). A party may also be classically aggrieved, which involves a two-part test: "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." (Internal quotation marks omitted.) Walls v. Planning Zoning Commission, 176 Conn. 475, 478, 408 A.2d 252 (1979).
European is not statutorily aggrieved because it does not own nearby property; rather, it holds a mortgage on property within 100 feet of the subject of the variance. This does not qualify for statutory aggrievement under § 8-8(a). See Burke v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 92 300221 (April 19, 1993, Fuller, J.) [9 Conn. L. Rptr. 3] (holder of fourth mortgage "cannot in any realistic sense be considered a `person owning land' intended by the legislature to have automatic standing to appeal a zoning decision on adjacent property"); see also RR Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 571-72, 684 A.2d 1207 (1996).
European also argues that it is classically aggrieved. While courts have generally refused to hold that mortgage holders can be classically aggrieved; see RR Pool Home, Inc. v. Zoning Board of Appeals, supra, 43 Conn.App. 563; one appellate decision, Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 755 A.2d 329 (2000), has held that a mortgage holder can be classically aggrieved if it adduces evidence that it holds a substantial mortgage on the property and that the value of the property would be significantly diminished, such that the mortgage holder's security interest would be impaired. Id., 766-67; see also Dietz v. Sterling Planning Commission, Superior Court, judicial district of Windham, Docket No. CV 03 0070305 (April 22, 2004, Cosgrove, J.) (citing Goodridge in holding that mortgagee was classically aggrieved); Sanders v. Inland Wetlands Commission, Superior Court, judicial district of New Haven, Docket No. 341869 (August 10, 1993, Healey, J.) [9 Conn. L. Rptr. 588] (plaintiffs, as mortgagees of property, `retained a specific, personal and legal interest in themselves in [the property]' and, therefore, were classically aggrieved). The Goodridge court did not set forth guidelines for when an interest is "substantial"; however, see Warner v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 05 4001847 (May 15, 2006, Trombley, J.) (41 Conn. L. Rptr. 456, 458) ("[I]t is axiomatic that mortgagees may only demonstrate injury when they are denied the ability to recover the full amount of the principal remaining on the mortgage through foreclosure"). In Warner, the court refused to find aggrievement where the plaintiff, appealing from the zoning board's grant of a variance, held a $75,000 mortgage on property worth $150,000 since it "border[ed] on the impossible" that the plaintiff's ability to collect the full amount of the mortgage would be impaired. Id., 458. Moreover, the burden of proof is on the plaintiff, and "mere generalizations and fears [of the effects of a zoning decision] do not establish aggrievement." Walls v. Planning Zoning Commission, supra, 176 Conn. 478. Nevertheless, "[a]ggrievement [may be] established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).
Therefore, in order to establish aggrievement, European would have had to demonstrate that it is likely that the value of its mortgage property will decrease so much that the full value of its security interest is threatened. European presented evidence of its mortgage interest on the property, but did not present evidence as to the current value of the property or the detrimental effects of the zoning board's decision on its value. Absent such evidence, this court cannot find that European is aggrieved. Therefore, its arguments both as to improper notice and the merits of the board's decision are not properly before this court, as it lacks subject matter jurisdiction, and European's appeal is hereby dismissed.