Opinion
FSTCV166030359S
12-13-2017
ONE ELMCROFT STAMFORD, LLC v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.
UNPUBLISHED OPINION
OPINION
TAGGART D. ADAMS, JUDGE TRIAL REFEREE
I. BACKGROUND
This case is an appeal by the plaintiff One Elmcroft Stamford, LLC, (One Elmcroft) of a decision of the defendant Stamford Zoning Board of Appeals (ZBA) approving the application of Pasquale (Pete) Pisano to locate a used car business, Pisano Brothers Automotive, Inc., at 86 Elmcroft Road in Stamford, Connecticut. One Elmcroft owns property at 126 Elmcroft Road that is abutting to 86 Elmcroft Road. The appeal is brought pursuant to General Statutes § 14-57 and 4-183 (the Connecticut Administrative Procedure Act) because Connecticut law provides that a license for " dealing in or repairing motor vehicles" requires a " certificate of approval of the location" from the appropriate local board, in this case the Stamford ZBA. See General Statutes § 14-54.
In accordance with Practice Book Section § 14-7A a certified list of all papers in the ZBA records concerning this matter, denominated No.059-16, have been filed in court at Docket Entries 110.00 and 111.00 in the case. An additional document was added subsequently and the full return of record consists of twenty items, including the transcript of the ZBA’s public hearing respecting the Pisano application, and the Board’s subsequent deliberations.
References to these documents will be to Return of Record (ROR) followed by the item number.
Briefs were filed on behalf of the appellant, the Stamford ZBA and Pasquale Pisano and Pisano Brothers Automotive, Inc. The court has read the record and considered all the briefs and the arguments of counsel at the hearing held on September 20, 2017. At that hearing the court found, based on testimony presented and a location survey at ROR Item 3, that the appellant One Elmcroft is an aggrieved party with standing to litigate this appeal. See General Statutes § 8-8(a) and (b). The ZBA did not contest this issue.
II. SCOPE OF REVIEW
In Maluccio v. East Lyme Zoning Board of Appeal, 174 Conn.App. 750 (2017) the Connecticut Appellate Court set forth at some length the applicable standard of review of Zoning Board of Appeals decisions.
We begin by setting forth the applicable standard of review. In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal ... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision ..." It is well settled that ... [t]he court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ... Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board’s decision, not for the contentions of the applicant ... to determine whether the judgment was clearly erroneous or contrary to law." (Citations omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 643-44 cert. denied, 256 Conn. 908 (2001). " When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision ... Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420-21, 788 A.2d 1239 (2002).Id., 755-56.
III. PRIOR PROCEEDINGS
Mr. Pisano made application, dated July 14, 2016, to the ZBA to allow a " used car dealer" to be located in the MG Zone in Stamford at 86 Elmcroft Road. The property is owned by Messrs DeSantis and Castrovilli and previously was the site of a business known as Stamford Forge and Metal Craft. ROR, Item 1. The application had been reviewed and approved for submission to the ZBA by James Lumley, Stamford’s Zoning Enforcement Officer. Id. Mr. Pisano also submitted an application for an Automobile Dealer’s license or Repairer’s license stating the name of the business as Pisano Brothers Automotive, Inc., and identifying his older brother Joseph as President and himself as Vice President. Id., Item 2. The record also reflects that Pisano Brothers Automotive had a written lease for the 86 Elmcroft Road effective June 1, 2016 for an unstated length of time. ROR, Item 4. Mr. Pisano waived the requirement that his application be heard within 65 days. Id., Item 6. The location survey at ROR, Item 3 reveals the following: the property size is 6500 square feet with the existing building covering just over half that area. An open asphalt parking area fronts on Elmcroft Road providing four parking places and two other spaces for " vehicle display." Inside the building are two vehicle lifts, two more parking spaces, a small office and storage areas.
On August 3, 2016 the ZBA referred the Pisano application (059-16) to various City agencies and boards, including the Planning Board, for their comments, noting that a ZBA public hearing on the application would take place on September 14. Id., Item 8. The Planning Board responded on September 8th that it " unanimously recommended" that the Pisano application be denied because it did not " keep with the character of the neighborhood" and was " not consistent with the 2015 Master Plan Category # 9 (Urban Mixed Use)" Id., Item 9. The record contains only one set of comments on the application- by the City Engineering Bureau- to the effect that approval of the application should be conditioned on the installation of a concrete sidewalk and curb along the frontage on Elmcrest Road. Id., Item 10.
Mr. Pisano provided the required notice to all abutting properties of the November 14, 2016 public hearing by the ZBA on the application for approval as auto repairer and used car dealer, including notice to the appellant, One Elmcrest Stamford, LLC at 126 Elmcrest Road. ROR Items 12, 13. The hearing went forward as scheduled and the application was unanimously approved, with conditions, by the ZBA. The record shows that two individuals spoke against the application- John DeRosa and Al Sgritta. Id., Items 15, 16 and 17. There is no record that the appellant One Elmcroft Stamford LLC, or any representative thereof, was present at the ZBA hearing.
IV. DISCUSSION
The appellant raises several issues in its appeal and supporting brief. First, it claims that the named applicant, Pasquale Pisano, is not a proper party and lacked standing to apply to the ZBA, for location approval. The appellant correctly points out the named applicant was Pasquale Pisano, but that it was Pisano Brothers Automotive’s business that sought the new location and was the lessee of the property at 86 Elmcroft Road. The court is not persuaded by this argument, which leaves out many crucial facts. Throughout the record it is apparent that it was Pasquale Pisano’s and his brother’s business that was making application to relocate. This was certainly made clear by the application for automobile dealer’s or repairer’s license in the name of Pisano Brothers Automotive, Inc., the lease of the subject property to that corporation, the survey prepared for that corporation and the notification to nearby owners. ROR, Items 2, 3, 4, 7, 10 and 13. Furthermore, that the application was made on behalf of the corporation was emphasized at the outset of the ZBA hearing when Pasquale Pisano was introduced as " owner of Pisano Brothers Automotive" and his brother as his partner. ROR Item 19, pp 2, 4.
As the City of Stamford’s brief points out, nowhere in the record is there an indication that anyone in the process was misled by the fact that Mr. Pisano, at a time when he was not represented by counsel, signed the application without indicating he was signing as an agent. In a similar situation involving a Stamford zoning regulation limiting, in part, who can make an application for an amendment to such regulations to " any Stamford property owner" the Honorable William Mottolese has illuminated what this court considers the proper analysis of the subject of who or what is a proper applicant. In Murphy v. Zoning Board of the City of Stamford, Superior Court, Judicial District of Stamford/Norwalk, CV 14-5014294, (November 16, 2016) Judge Mottolese found that Richard Redniss signed and swore to an application in his individual capacity. Further evidence showed that 22 First Street Corporation, also identified in the application, was an entity owned by Redniss and his brother, and that corporation was a Stamford land owner, whereas Richard Redniss was not. Judge Mottolese noted that courts disfavor raising procedural errors to defeat a party after the time to correct the error has passed. He also found the evidence clear that 22 First Street Corporation " implicitly agreed (though not in writing) to have Redniss act as its agent" in making the application, and the property owner requirement of the regulation was satisfied.
This court finds the above reasoning persuasive and finds that Pasquale Pisano pursuing the application is not reason to overturn the ZBA decision.
One Elmcroft contends that the ZBA should not have heard, or granted, Pisano’s application because the application and the ZBA’s notice of hearing were inadequate to advise the public of the subject matter of the hearing. The application was made for a used car dealer; neither of the boxes for " general repairer" or " limited repairer" were checked. ROR, Item 2. The ZBA’s legal notice referred to an application to " allow a used car dealer to operate." Id., Item 12. Pisano’s required written notice to the site’s neighbors made reference to the pending application for " automotive repair/used car dealer." Id., Item 13. This written mailed notice contained all the information necessary for the public to be fully informed as to the subject matter of the ZBA hearings.
Both One Elmcroft and the City have cited to Winslow v. Zoning Board of Stamford, 143 Conn. 381 (1956) in support of their opposing arguments on the issue of notice. In that case the Connecticut Supreme Court defined " proper" notice as referring to " everything upon which the board proposed to act and to which the attention of the public was invited." Id., 388.
The court notes that both Pisano, and subsequently Pisano’s counsel, conferred with James J. Lunney, Stamford’s zoning enforcement officer about the description of Pisano’s application as a used car dealer. Mr. Lunney approved the application for submission to the ZBA and he explained that because a car repair business was a less intrusive use than a used car dealership it was appropriate to style the Pisano application as one for used cars. ROR, Item 1; Item 19 pp. 5-6. With this background and recognizing that the written notice provide by Pisano was fully informative, the court finds, that proper notice was provided.
The appellant further claims there was " clear error" by the ZBA in granting approval of the Pisano application in light of the evidence in " the whole record." Dkt. Entry 113.00, 11. Specifically, One Elmcroft points to the ZBA’s approval for a " used car Dealer" when the record before it contained evidence that selling used cars was a relatively minor element of Pisano’s business which was largely auto repair. There is little question that Pisano’s major business was car repair. It was stated at the ZBA hearing by Pisano’s counsel that " [t]he used car dealer aspect is one that is not something he [Pisano] uses very often ... He probably sells less than ten a year." ROR, Item 19, p.4. Pisano interjected at that point, " Probably less than five, " and commenting that his work would " mostly going to be repairs." Id. Later on, Pisano stated that used car sales were " one to five a year at most." Id., 13.
There was no mistake or error by the ZBA. The record clearly shows that while the Board was considering the Pisano application its members were fully aware that car repair was the main business to be conducted at the new site.
In its briefs, and during oral argument, One Elmcroft contend the ZBA " failed ... to conduct the requisite suitability analysis." Dkt. Entry 113.00, p. 12. The briefing on this issue has become complicated primarily because of a 2011 Superior Court decision involving the same piece of property at 86 Elmcroft Road, East Coast Towing LTD v Zoning Board of the City of Stamford, Superior Court, Judicial District of Stamford/Norwalk, CV 10-6003028 (March 2, 2011, Tobin, D., J.) 2011 WL 1087192, in which the court held that, although General Statutes § 14-55 had been ostensibly repealed, enough of that statute remained to require a local zoning board of appeal to find that the proposed location was " suitable" for the business intended. This court agrees that the ZBA was required to consider the suitability of Pisano’s proposed repair facility at 86 Elmcroft Road.
Furthermore, the court finds that the Stamford ZBA properly considered the suitability of locating the Pisano business at 86 Elmcroft Road. The court has reviewed the full transcript of the ZBA hearing and subsequent deliberations of the board on September 14, 2016 (ROR, Item 19) and finds more than substantial evidence of the board’s careful scrutiny of, and resulting conditions on, the Pisano application. For instance, board members questioned Pisano about the scope of his towing operation, the hours of operation and the location and the type of his repair work. ROR, Item 19, pp 8-16. Pisano responded that towing would only occur during the regular hours of business from 8 A.M. to 6 P.M.; the tow truck would be located inside the building when not in use; that he was not a general towing operation such as the American Automobile Association and that repairs would take place inside the building. Id., 12, 16, 30. Pisano specifically reiterated these points in response to a very pointed question from the board concerning off-site operation. Id., 19. ZBA member expressed concern about screening the repair facility from neighboring residence Id., 20. In response to some objection from neighbors, a ZBA member pointed out that Pisano had a right to operate his business at the proposed location and the board was working to make it " more palatable." Id., 27.
In its deliberations one board member noted that there are other businesses " a lot messier and a lot less cooperative than [Pisano]" that " could move in tomorrow" and not even appear before the ZBA because of the existence of the MG Zone, and noting that Pisano was " trying to be a good neighbor ... trying to make it a decent operation." Id., 33. The board recognized it had the opportunity to make the relocation of Pisano’s business more acceptable to neighbors by establishing conditions to its approval- many of which Pisano had agreed to. Id., 37-42. Indeed, that is exactly what the board did by approving the application unanimously with fourteen conditions. ROR, Items 14-16. These conditions- covering both visual and sound conditions- are stark evidence of the careful attention paid by the ZBA to the issue of suitability.
One Elmcroft contends the ZBA reviewed the Pisano application under the wrong standard by treating it as a request for a variance and further speculates that if the correct standard had been applied, the board would have rejected the application as it rejected the application in the above cited East Coast Towing case. Both the contention and the speculation are unfounded. One Elmcroft is correct that the board’s certificate of approval looks and reads like a variance. See ROR Item 16. But the overall record is clear that what Pisano Brothers received was approval of a location for car repairs with conditions. No variance was requested, because the property at issue is located in a M-G zone which permits business like Pisano Brothers. See ZBA Brief (Dkt Entry 115.00) Ex. B; ROR Item 19, pp 3, 17 (two other repair shops around the corner from Pisano location) 33. As to the speculation that the board might have rejected the Pisano application if it used the right standard one only needs to compare the facts of the East Coast Towing case with the facts present in this case to reject that argument. East Coast Towing involved an application for location approval of a 24-hour, seven-day-a-week towing operation with ten tow trucks. An engineer reported only one parking space was available for used car inventory, customer parking and tow truck parking, and that the limited traffic circulation, necessity of on-street parking, the back out of trucks and other vehicles created a conflict for traffic flow and a safety concern. In this case, the ZBA properly looked at the suitability of the Pisano business- a business clearly different from the East Coast Towing business- and made a reasoned decision to approve the Pisano application with conditions.
V. CONCLUSION
After full review and for the reasons set forth herein, the court finds there is more than substantial evidence to support the ZBA decision, and the appeal is denied.