Opinion
CV106005554S.
11-28-2012
ALLSTAR SANITATION, INC., Substituted for Greenwood Manor, LLC v. BRIDGEPORT PLANNING & ZONING COMMISSION.
UNPUBLISHED OPINION
RADCLIFFE, J.
FACTS
The Substituted Plaintiff, Allstar Sanitation, Inc., is the owner of an unimproved parcel of real estate consisting of approximately 9 .9 acres, located between Hart Street and Greenwood Street in the city of Bridgeport. Title to the property was acquired by the Substituted Plaintiff via a quitclaim deed dated April 16, 2012, from Greenwood Manor, LLC, in whose name this action was commenced.
The parcel is situated in a Residence A(RA) Zone, in which single-family dwellings are a permitted use.
Beginning in 2006, the Bridgeport Planning and Zoning Commission began a comprehensive review of its Plan of Conservation and Development, adopted pursuant to S.8-23(a) FN1 of the General Statutes. The review also included an examination of the existing zoning map, and the zoning regulations. The zoning regulations and the zoning map comprise the municipal comprehensive plan. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265 (1983); Pierrepont v. Zoning Commission, 154 Conn. 463, 466 (1967).
In March of 2008, the Defendant Planning and Zoning Commission approved a new Plan of Conservation and Development, or Master Plan. The 2008 Plan of Conservation and Development did not recommend any change in the zoning classification of the Plaintiff's property from Residence A(RA).
While the master plan adopted pursuant to S.8-23(a) of the General Statutes is advisory, and does not control the commission in its enactment of zoning regulations, or changes in zone boundaries; Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 223 (1973); Sheridan v. Planning Board, 159 Conn. 1.9 (1969); a planning and zoning commission, by statute, must consider the document when establishing zone boundaries.
Section 8-3(b), C.G.S.— " Such boundaries shall be established, changed or repealed only by a majority vote of all members of the zoning commission ... In making the decision, the commission shall take into consideration the plan of conservation and development prepared pursuant to section 8-23 ..."
Following the approval of the 2008 Master Plan, the Bridgeport Planning and Zoning Commission continued its review of the zoning regulations, and the zoning map.
Attorney Raymond Rizio wrote to the Planning Office of the City of Bridgeport on behalf of Greenwood Manor, LLC. In a November 10, 2008 letter (ROR Speaker # 4, Ex. 3), Attorney Rizio claimed that the Plaintiff's parcel was underutilized, based upon its RA zoning designation. He suggested that the property be rezoned to Residence C(RC), a classification which would permit construction of a 66-unit condominium project.
Before voting to revise the zoning regulations and the zoning map on March 30, 2009, the commission elected to schedule two public hearings, at which citizen input was solicited.
On November 10, 2008, a public hearing devoted to changes in the zoning regulations was convened. (ROR TR, 11-10-08, p. 1.) The regulations were presented without reference to any specific project.
A second public hearing was scheduled for October 14, 2009. At that hearing, the Bridgeport Planning and Zoning Commission solicited input concerning eleven (11) parcels. The Plaintiff's Greenwood-Hart property was included in the list. (TR, 11-10-09, p. 1.)
Some speakers advocated changing the property from its RA designation, to RC. (TR, 11-10-09, p. 11-15; p. 36-37.) Those favoring the change of zone included Paul S. Timpanelli, who spoke on behalf of the Greater Bridgeport Regional Business Council. (TR, 11-10-09, p. 37.)
Changing the zoning classification was opposed by several speakers, including a spokesman for a committee known as " Committee to Ungag the People." (TR 11-10-09, p. 20-21.) Two speakers, including State Representative Chris Caruso, alluded to the potential purchase of the Greenwood-Hart property as part of a flood control project. (TR, 11-10-09, p. 25-26.) It was claimed that the zoning classification should not be changed, because any change would constitute " spot zoning" and would be inconsistent with Bridgeport's Master Plan. (TR 11-10-09, p. 26-27.)
Following the public hearing, Commissioner Kish argued in favor of rezoning the Greenwood-Hart parcel to RC, while Commissioner Phillips argued that any change to RC would be inconsistent with the Master Plan. In a " consensus vote, " commissioners favored retaining the RA classification, by a vote of 5-3. (TR, 11-10-09, p. 20-26.)
At its November 30, 2009 voting session, the commission voted, unanimously, to amend portions of the zoning regulations, effective January 1, 2012. A notice of that decision was published on December 6, 2009, in the Connecticut Post.
The commissioners also approved a new zoning map. As a preliminary part of that process, the commission voted, 6-3, to retain the Plaintiff's Greenwood-Hart parcel within the RA zone. The commission also made a specific finding that the new zoning map was consistent with Bridgeport's Master Plan. (TR, 11-30-09, p. 8.)
The Plaintiff brings this appeal, challenging the approval of the zoning map on November 30, 2009. Specifically, it argues that the 9.9-acre Greenwood-Hart property should have been rezoned from Residence A(RA) to Residence C(RC).
Although no question was raised at the time of the November 30, 2009 vote, or during the commission's lengthy review the Master Plan, the zoning regulations, or the zoning map, the Plaintiff claims, in this appeal, that the vote to approve the zoning map was improper.
No challenge has been raised concerning the approval of the zoning regulations.
The Plaintiff maintains that Commissioner Anne Pappas-Phillips, an alternate member of the commission, should not have voted, in that her term of office had expired prior to November 30, 2009.
The Plaintiff further alleges that improper influence was exerted by city officials, in an effort to prevent the rezoning of the Greenwood-Hart parcel, because designating the property RC would have made it more valuable, and more expensive to purchase.
While this appeal was pending, the Court (Dooley, J.) permitted the Plaintiff to take the depositions of three members of the Bridgeport Planning and Zoning Commission— Chairman Melville Riley, Barbara Freddino, and Robert Morton. The depositions have been made part of the record in the appeal.
AGGRIEVEMENT
The Plaintiff claims that it is " aggrieved" by the decision of the Defendant Bridgeport Planning and Zoning Commission to approve a revised zoning map on November 30, 2009. It makes this claim, notwithstanding the fact that the commission's action did not alter the zoning classification of its 9.9-acre parcel.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); 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).
Aggrievement falls into two basic categories— statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by legislative fiat, rather than by judicial analysis of the facts of the particular case. One claiming statutory aggrievement must show that a particular statute grants to the Plaintiff standing to pursue an appeal, without the necessity of demonstrating actual injury based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156 (2008); Andross v. West Hartford, 285 Conn. 309, 322 (2008); Weill v. Lieberman, 185 Conn. 123, 124-25 (1986).
Section 8-8(a)(1) of the General Statutes defines " aggrieved person" for purposes of an appeal from a decision of a municipal land use agency. The statute reads:
(1) " Aggrieved person" means a person aggrieved by a decision of a board ... In the case of a decision by a zoning commission or a zoning board of appeals, " aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet from any portion of the land involved in the decision of the board.
Classical aggrievement, on the other hand, requires a party claiming to be aggrieved to satisfy a well-established two-fold test: 1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must prove that the specific personal and legal interest has been specifically and injuriously affected by the action of the agency. Cannaco Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
The burden of proving aggrievement rests with the person or entity claiming to be aggrieved. London v. Planning & Zoning Commission, 149 Conn. 282, 284 (1962).
The Plaintiff claims to be statutorily aggrieved, because it owns property affected by the November 30, 2009 commission vote, which amended the zoning map.
This claim is not persuasive.
The Plaintiff does not claim that it owns any property which is within one hundred (100) feet of any parcel which was rezoned as a result of the November 30, 2009 commission action. Nor does it claim that any regulation, as amended by the commission, has impacted its Greenwood-Hart property.
At no time did the Plaintiff file an application with the Bridgeport Planning and Zoning Commission, seeking the rezoning of its 9.9-acre parcel. The fact that a letter was transmitted to the planning department by an attorney, asking a rezoning of the property pursuant to a city-wide revision of the zoning map, does not constitute a rezoning application.
The Plaintiff's only allegation is that it owns property which was affected by the November 30, 2009 decision. Since the zoning classification of the Greenwood-Hart property was unaffected by the commission's November 30, 2009 vote, the facts do not support the Plaintiff's claim.
In Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 374 (1992), the Connecticut Supreme Court found aggrievement, based on the adoption of a regulation which doubled the minimum lot size requirement in a zone from 40, 000 square feet to 80, 000 square feet. The Plaintiffs owned land in the affected zone, and were immediately impacted by the amendment. Timber Trails Corporation v. Zoning Commission, supra, at 376, n. 3.
Likewise, Latham v. Town of Stonington Planning & Zoning Commission, 2011 Conn.Super. LEXIS 798 (2011) (Hendel, J.), involved an application for a change of zone which included the Plaintiff's property. The application was submitted at the commission's initiative.
Here, no application seeking the rezoning of the Greenwood-Hart property was ever filed. No application was before the commission, when it, on its own motion, considered changes in the zoning map.
It is found that the Substituted Plaintiff, Allstar Sanitation, Inc., is not statutorily aggrieved by the decision of November 30, 2009, because the Greenwood-Hart property is not affected by the decision.
However, this finding does not prevent the Plaintiff from filing an application with the Bridgeport Planning and Zoning Commission, seeking to change the zoning classification from RA, to a zone permitted additional residential options. While the court does not prejudge the result of any such application, the Plaintiff would have standing to appeal, in the event of an adverse decision by the commission.
The Plaintiff also claims that it is classically aggrieved by the November 30, 2009 action. It argues that the Greenwood-Hart parcel has less value in an RA zone, than it has in a zone designated RC.
This claim fails to resonate.
The Plaintiff has no specific interest in the decision appealed from. The November 30, 2009 vote of the commission altered the zone classifications of some properties, but did not change the RA classification applicable to the Greenwood-Hart parcel.
Nor does the Plaintiff claim to be statutorily aggrieved by the rezoning of any specific property, or by the adoption of any new regulation.
Classical aggrievement has been found where changes in subdivision regulations reduced the number of building lots which could be generated by a parcel from thirty-nine (39) to thirty-three (33). Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 289-91 (2001). In Lewis, the amendment affected subdividable land in the Town of Ridgefield, where the Plaintiffs owned six or seven percent of the land affected by the amendment. The adoption of the regulations had an immediate affect on the number of subdividable lots the Plaintiffs were permitted to carve out of the property. Therefore, the Plaintiffs had a specific interest which had been injuriously affected by the zoning amendment. Lewis v. Planning & Zoning Commission, supra, at 289.
Since the November 30, 2009 vote was a vote to rezone certain properties, and was not a refusal to rezone the Greenwood-Hart property, the Plaintiff's interest has not been specifically and injuriously affected. A different result would occur, if the Plaintiff applied for a rezoning of its property, and the commission specifically voted to deny the rezoning application.
ISSUES NOT DECIDED
Because the Plaintiff has failed to demonstrate that it was either statutorily or classically aggrieved by the November 30, 2009 decision of the Bridgeport Planning and Zoning Commission, it is not necessarily to consider the merits of the appeal. Keiser v. Zoning Commission, 62 Conn.App. 600, 601 n. 2 (2001).
However, based upon the final vote of the commission, it is evident that the vote of Commissioner Ann Pappas-Phillips was not crucial to the decision. Had her vote been disallowed, the approval of the revised zoning map would have been supported by a majority of the commission.
Furthermore, there is a presumption that members of an administrative agency are not biased. Judkowitz v. Department of Health Services, 220 Conn. 86, 100 (1991); Rado v. Board of Education, 216 Conn. 541, 556 (1996).
In order to overcome this presumption, a party must do more than raise the issue after the administrative record has been completed. Actual bias, not merely potential bias, must be shown. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429 (1995).
Nothing in the exhaustive administrative record, as compiled before the commission and supplemented by the depositions, demonstrates actual bias by any commission member. The potential purchase of the Greenwood-Hart property by the city as part of a flood control project was mentioned during the course of the public hearing.
No bias may be inferred from knowledge of the potential purchase by any member of the commission.
CONCLUSION
The appeal of the Substituted Plaintiff, Allstar Sanitation, Inc., is DISMISSED.