Opinion
No. CV07 402 29 59 S
April 8, 2009
MEMORANDUM OF DECISION
The plaintiff appeals from the decision of the defendant planning and zoning commission of the city of Bridgeport to grant the defendant applicants' various requests regarding the subject property in Bridgeport, Connecticut. Specifically, the plaintiff appeals the issues of: (1) whether the defendant commission properly approved the defendant applicants' zone change request; (2) whether the defendant commission made the required findings in approving the defendant applicants' general development plan; and (3) whether the general development plan submitted conforms to the Bridgeport zoning regulations regarding a parking structure.
The matter presented involves an application for the approval of a zoning change, a general development plan review, a coastal site plan review, a subdivision and a soil erosion and sedimentation control.
The plaintiff, Michael Mauzerall, is the owner of real property known as 21-27 Henry Street, Bridgeport, Connecticut. The plaintiff's property directly abuts properties known as 37, 51, 57, 97 and 122 Henry Street, and 12, 50, 60, 76, 110 and 122 Main Street (collectively "the subject property"), all located in Bridgeport, Connecticut, and all the subject of the plaintiff's appeal.
"The Mauzerall [property] is located in an I-HI Heavy Industrial Zone. The subject Property is located partially in an I-HI Heavy Industrial Zone and partially in an IL-I Light Industrial Zone. The defendants, 60 Main Street, LLC, 3260 Broadway Service Center, Inc., Hiram Adelman and Brook Merrow [(the defendant applicants)] are the record owners of the Property."
The defendant applicants filed an application; (ROR, Ex. E); dated June 1, 2007, to the defendant planning and zoning commission of the city of Bridgeport (the defendant commission) for approval of a change of zone from industrial light (IL-I) to mixed use waterfront zone (MU-W) under article five of the city of Bridgeport zoning regulations, for approval of a general development plan review in accordance with article fourteen of the regulations, for approval of a coastal site plan review in accordance with § 14-3 of the regulations, for approval of a subdivision in accordance with § 14-5-9 of the regulations and for approval of a soil erosion and sedimentation control under § 11-11 of the regulations, all in order to permit the construction of a mixed-use residential/commercial/marina/ferry on the subject 12.2-acre property. The mixed-use site would be directly abutting the Mauzerall property, which would remain a heavy industrial use.
On September 19, 2007, a public hearing was held on the above described application. "The defendant Applicants were present at said hearing and presented evidence in support of their application." The plaintiff alleges that "no proposed findings, including the findings required by Section 14-6-6 of the regulations for approving the General Site Plan were submitted by the Applicants."
On September 24, 2007, the defendant commission held an administrative hearing to consider the defendant's application. At said hearing, the defendant commission approved said application with conditions as set forth in a letter to the defendant applicants dated September 28, 2007. (ROR, Ex. LLL.) The plaintiff alleges that "[s]aid approval did not include the findings required by Section 14-6-6 of [the regulations] in order to approve the General Development Plan." Notice of the application's approval was published in the Connecticut Post on September 30, 2007.
By amended appeal dated November 5, 2008, the plaintiff appeals from the decision of the defendant commission, alleging "that the Defendant Commission's actions in granting the Application were illegal, unlawful, arbitrary, and in abuse of discretion, and, that in approving the General Development Plan, the Commission failed to make the findings that are required by Section 14-6-6 of the City of Bridgeport's Zoning Regulations."
"[A]ppellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
A. Aggrievement
"The question of aggrievement is essentially one of standing." McNally v. Zoning Commission, 225 Conn. 1, 7, 621 A.2d 279 (1993). "It is well settled that pleading and proof of aggrievement [within the meaning of the statute] are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
Those who own land which abuts or is within a radius of one hundred feet of the land involved in any decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals are statutorily aggrieved and need not prove aggrievement. See General Statutes § 8-8(a); Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).
General Statutes § 8-8(a)(1) provides in relevant part: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes 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."
In the present case, the plaintiff alleges aggrievement as the owner of the property known as 21-27 Henry Street, Bridgeport, Connecticut. The file contains a quit claim deed, marked plaintiff's exhibit one, evincing the plaintiff's ownership interest in 21-27 Henry Street. (Plaintiff's Ex. 1.) 21-27 Henry Street directly abuts the subject property. As such, the plaintiff is aggrieved within the meaning of § 8-8.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides that an appeal of this nature "shall be commenced by service of process . . . within fifteen days from the date that such notice of the decisions was published . . ."
General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman of the clerk of the board a necessary party to the appeal." General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of the law, upon the clerk of the town, city or borough, provided the two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
In the present case, on September 24, 2007, the defendant commission held an administrative hearing to consider the defendant's application. At said hearing, the defendant commission approved said application with conditions as set forth in a letter to the defendant applicants dated September 28, 2007. (ROR, Ex. LLL.) "On September 30, 2007, notice of the aforementioned approval of the Application was published in the Connecticut Post, a local newspaper." The plaintiff commenced this appeal "by serving at least twelve (12) days before the return date a true and attested copy of [the citation] and the attached Writ, Summons, Appeal and Complaint upon said parties as follows: With or at the usual place of abode of the Chairman or Clerk of the planning and zoning commission of the city of Bridgeport . . . Upon the city of Bridgeport . . . With or upon 60 Main Street, LLC, in care of its appointed agent for service, the Secretary of the State of Connecticut . . . With or upon 3260 Broadway Service Center, Inc., at its principal office . . . With or upon Hiram Adelman, in care of his appointed agent for service, the Secretary of the State of Connecticut . . . With or upon Brook Merrow, in care of her appointed agent for service, the Secretary of the State of Connecticut . . ."
Publication of the defendant commission's approval of the application in the Connecticut Post is not contained in the return of record, #104, dated May 12, 2008. The defendants, however, admit in their separate answers to paragraph six of the complaint that notice of approval was published as alleged by the plaintiff.
The marshal's returns and attached certified mail receipts, although not in the return of record, are attached to the plaintiff's appeal dated October 9, 2007.
As evidenced by the certified mail receipts, all of the defendants were served by October 12, 2007, within fifteen days from the date that notice of the defendant commission's decision was published on September 30, 2007. Further, the defendants admit in their separate answers to paragraph ten of the complaint that the plaintiff's appeal has been taken within fifteen days of publication of the defendant commission's decision. The defendants do not dispute the timeliness or service of the plaintiff's appeal. Accordingly, the plaintiff's appeal complies with the statutory requirements for timeliness and service of process.
C. Standard of Review
"In rezoning the property in question, [a] commission [acts] as a legislative body." First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 540, 338 A.2d 490 (1973). "The standard of review according to which courts must analyze challenges to legislative decisions of local zoning authorities is well settled. In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the [zoning authority] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached . . . [T]he courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions [that] create the problem and shape the solution." (Citations omitted; internal quotation marks omitted.) Konigsberg v. Board of Alderman, 283 Conn. 553, 582, 930 A.2d 1 (2007).
"[A]cting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion . . ." Id., 582-83.
"Within these broad parameters, [t]he test of the [legislative] action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [the city's enabling legislation]. . .", (Internal quotation marks omitted.) Id., 583.
"A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interest of the entire community . . . The basic purpose of requiring conformance to a comprehensive plan is to prevent the arbitrary, unreasonable and discriminatory exercise of the zoning power . . . In the absence of a formally adopted comprehensive plan, a town's comprehensive plan is to be found in the scheme of the zoning regulations themselves." (Citations omitted; internal quotation marks omitted.) Petersen v. Planning and Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 98 0065796 (March 12, 1999, Klaczak, J.).
The enabling legislation referred to is generally the police power purposes detailed in General Statutes § 8-2. See Harris v. Zoning Commission, 259 Conn. 402, 417, 788 A.2d 1239 (2002) ("[T]he test of the action of the commission is twofold . . . (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2").
"In addition the plaintiffs bear the burden of extablishing that the [commission] acted improperly . . . Finally, in our review of the [commission's] decision to amend the zoning ordinance, we are mindful that, [e]very intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt . . . Thus, if the decision of the [commission] to amend the zoning regulations reasonably was supported by evidence in the record, in accordance with the comprehensive plan for the city and related to the police power enumerated in the city's zoning ordinance, it must be upheld on appeal." (Citations omitted; internal quotation marks omitted.) Id., 583-84.
D. Zone Change and Police Power Purposes of General Statutes § 8-2
Plaintiff argues that "there is no reasonable support in the record that the zone change is reasonably related to the police power purposes of C.G.S. § 8-2." Focusing on the traffic impact and access analysis submitted by the defendant applicants; (ROR, Ex. J-1, J-2); the plaintiff argues that "the voluminous analysis shows that it is completely devoid of any information and/or data regarding the traffic flow and volume of Henry Street, and the types of vehicles that use Henry Street," and therefore "the record does not reasonably support that . . . the zone change is designed to `lessen congestion in the streets; to secure safety from fire, panic . . . and other dangers; to promote . . . the general welfare; . . . to facilitate the adequate provision for transportation . . .'" The plaintiff contends that "there is testimony in the record given by the plaintiff that shows a traffic hazard does exists on Henry street [because the] plaintiff represented that his industrial use at 21-27 Henry Street is serviced by tractor-trailer vehicles . . . [which] would mix with the proposed residential use, thereby creating a hazard."
The plaintiff further argues that "the Applicants intend to raise the property's flood elevations . . . without any consideration for the flood level of the plaintiff's property thereby leaving his property lower than the subject property and thus causing a hazardous flooding condition. (See ROR, Exhibit PP1 — Transcript Page 62 of 66.)." Finally, "[t]he plaintiff represented that the project would decrease his property value and hinder his industrial use . . . and therefore said zone change should have been denied."
General Statutes § 8-2 provides in relevant part: "[Zoning] regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid under concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to (the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality . . ."
"Connecticut General Statutes Section 8-2 requires that the exercise of the zoning power be, inter alia, reasonably related to the promotion of public health, welfare and safety." Volpintesta v. Zoning Board, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0113581 (April 3, 1992, Nigro, J.) [6 Conn. L. Rptr. 266]. "How the public welfare would best be served [is] a decision within the discretion of the commission." Hawkes v. Planning and Zoning Commission, 156 Conn. 207, 211, 240 A.2d 914 (1968). "We must consider this case under the well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Planning and Zoning Commission, 78 Conn.App. 216, 227, 826 A.2d 249 (2003).
In the present case, the plaintiff has not shown that the defendant commission acted arbitrarily, illegally or unreasonably. The defendant commission's approval of a zone change from industrial light (IL-I) to mixed use waterfront (MU-W) under article five of the city of Bridgeport zoning regulations was in accordance with the comprehensive development plan; (ROR, Ex. J); and was reasonably related to the normal police powers enumerated in § 8-2.
The record reveals that there was substantial evidence before the defendant commission on traffic and impact offered by the defendant applicants in support of the zone change. Upon review of that record, it is clear that the defendant commission has acted fairly, with proper motives and upon valid reasons in granting the zone change application. The substantial and detailed traffic impact and access analysis submitted by the defendant applicants; (ROR, Ex. J-1, J-2); reasonably supports the defendant commission's decision to approve the zone change within the normal police powers of § 8-2. Although the plaintiff claims that the "proposed zone change will certainly increase traffic congestion and cause a traffic hazard," this contention is not supported by anything in the record other than his own speculative testimony. The plaintiff did not proffer his own traffic and impact analysis to submit into evidence. Similarly, there is no particular evidence in the record which supports the plaintiff's contention that the zone change will cause a hazardous flooding condition or lower his property value, other than his own speculative testimony. As such, there is no contradictory evidence in the record that would indicate the defendant commission based its decision to approve the zone change on anything other than reasonable evidence in the record; (ROR, Ex. J, J-1, J-2); which indicated the zone change would not create a traffic hazard, cause a hazardous flooding condition or decrease the property value of the plaintiff.
Accordingly, the decision of the defendant commission to amend the zoning regulations for a zone change is reasonably supported by the evidence in the record and properly related to the police powers enumerated in § 8-2. The defendant commission did not act illegally, arbitrarily or in abuse of its discretion.
E. General Development Plan and Bridgeport Zoning Regulation § 14-6-6
The plaintiff argues that the defendant commission, acting in an administrative capacity, failed to make findings required by Bridgeport zoning regulation § 14-6-6. The plaintiff contends that "there is no substantial evidence in the record that the findings as required by Section 14-6-6 of the City of Bridgeport's zoning regulations were made by the defendant Commission . . . The only findings listed on [the general development plan approval letter; (ROR, Ex. LLL);] are those pertinent to the Zone Change Approval. (See ROR, Exhibit LLL, p. 2.) Findings 1 through 7 in said approval letter mirror the contents of a document submitted by the Applicants entitled `Proposed Findings Re: Change of Zone to MU-W' (see ROR, Exhibit GGG), and also mirror the language of Sections 5-5-3a and 5-5-3b of the Regulations regarding MU-W Zone Changes. (See ROR, Exhibit WW)."
"[I]n rendering decisions on site plan applications, the plan commission acts in an administrative capacity." Konigsberg v. Board of Aldermen, supra, 283 Conn. 594.
The plaintiff incorrectly identifies the general development plan zoning regulation at issue as § 14-6-6. The correct Bridgeport zoning regulation is § 14-5-6.
Bridgeport zoning regulation § 14-5-6 provides: "No application for a GDP shall be granted until the Planning and Zoning Commission has made the following findings: 1. The GDP is compatible with the Comprehensive Plan and implements the objectives and policies of the Bridgeport Master Plan of Development. 2. The GDP demonstrates respect for environmental qualities of the site, addresses the water dependent uses, if any, addresses flood management concerns, and provides open space for the proposed use(s). 3. The GDP promotes the public health, safety and general welfare. 4. The GDP demonstrates respect for the surrounding properties through appropriate setbacks or other design controls. 5. The GDP promotes the economic well-being of the City. 6. The GDP is for a tract of land which exceeds twenty-five (25) acres in size."
"In construing regulations, the general rules of statutory construction apply." Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). "The test to be applied in determining whether a [regulation] is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the [regulatory] provision is mandatory . . . If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a [regulatory] provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a [regulatory] provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." (Citations omitted.) Lauer v. Zoning Commission, 246 Conn. 251, 262, 716 A.2d 840 (1998); Hyde v. Planning and Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 97 63495 (September 28, 1998, Klaczak, J.).
In Boris v. Garbo Lobster Co., 58 Conn.App. 29, 37, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000), the Appellate Court concluded that language of "shall" in a statute was directory and not mandatory when the statute in question was a matter of convenience. The court noted that "the statute does not contain language to invalidate actions taken by the commission if the commissioner's comments are not read into the record." Id.
Similarly, the court in Hyde v. Planning and Zoning Commission, supra, Superior Court, Docket No. CV 97 63495, considered, among other factors, that none of the provisions at issue there "contain language invalidating action taken on applications that fail to include such information." Likewise, in Arel v. Department of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV 00 0501933 (October 2, 2000, Satter, J.T.R.), the court opined that if "the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Furthermore, if there is no language that expressly invalidates any action taken after non-compliance with the statutory provisions, the statute should be construed as directory." (Citations omitted.) Id.
In Maturo v. Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 95 0575539 (September 15, 1997, Kaplan, J.), the defendant zoning commission's legal notice did not provide a reason for its denial of the plaintiff's special permit application, "[although the] General Statutes and the defendant's regulations state that the defendant shall state upon its records the reason for its decision." The court found the regulation in question to be directory only, reasoning that it is merely "desirable for the zoning authority to state on the record its reasons for its action, since if it does not, the trial court must search the record to find a basis for the action taken." Id.
In the present case, Bridgeport zoning regulation § 14-5-6 does not contain language to invalidate an action taken by the defendant commission if the listed findings were not expressly stated. There is no language that expressly invalidates any action taken after non-compliance with that regulatory provision; rather, the requirements of § 14-5-6 are stated in affirmative terms unaccompanied by negative words. Further, the plaintiff does not argue in his brief that § 14-5-6 contains language that would invalidate the defendant commission's decision where the enumerated findings were not made. In light of Boris v. Garbo Lobster Co., supra, 58 Conn.App. 37, Hyde v. Planning and Zoning Commission, supra, Superior Court, Docket No. CV 97 63495 and Maturo v. Zoning Commission, supra, Superior Court, Docket No. CV 95 0575539, § 14-5-6 may be considered directory rather than mandatory in this situation. Accordingly, the defendant commission's failure to expressly state findings as listed in § 14-5-6 does not invalidate its action, and the plaintiff's appeal must be dismissed on that ground.
F. Parking Garage and Zoning Regulation § 11-7-21
The plaintiff argues in his brief that "the parking garage to be constructed as part of the proposed development is in violation of section 11-7-21 of the city of Bridgeport's zoning regulations" and therefore the general development plan should have been denied. This argument, however, is not alleged in the plaintiff's amended appeal.
In Riley Enterprises, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Tolland, Docket No. CV 94 0054463 (January 6, 1995, Klaczak, J.), the plaintiff "[claimed] in its brief the ZBA held an illegal closed session when it decided [the] application . . . [S]ince that issue was not alleged in the pleadings, it is not considered." Similarly, in Ennis v. Planning and Zoning Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV 90 0093923 (November 5, 1990, Hurley, J.), the court refused to "consider the numerous claims of error briefed by the plaintiffs but not alleged in their complaint" in an appeal from a planning and zoning commission's approval of a resubdivision application.
See also DeMilo v. West Haven, 189 Conn. 671, 681-82 n. 2, 458 A.2d 362 (1983) ("Where a party fails to brief an issue . . . it is deemed abandoned"); In re Brandon W., 56 Conn.App. 418, 425, 747 A.2d 526 (2000) ("Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned"); Hartford v. Hartford Municipal Employees Ass'n., Superior Court, judicial district of New Britain, Docket No. CV 99 0494364 (March 20, 2001, Cohn, J.) ("This issue was not alleged in the complaint or briefed by the City and the court deems it abandoned").
In the present case, the plaintiff has not alleged in his complaint on appeal that the parking garage of the proposed development is in violation of Bridgeport zoning regulation § 11-7-21. The plaintiff first raised this issue in his brief on appeal. Accordingly, the court will not consider that argument now.
For all the foregoing reasons, the court dismisses the plaintiff's appeal.