Opinion
No. CV 04-0200940-S
September 14, 2005
I STATEMENT OF APPEAL
The plaintiffs, Alvord Investment, LLC ("Alvord") and The Stop Shop Supermarket Company ("Stop Shop") (collectively referred to as the plaintiffs), appeal from a decision of the Zoning Board of Appeals of the City of Stamford ("ZBA") reversing the decision of the Zoning Enforcement Officer of the City of Stamford. ("ZEO") to issue a zoning permit to the plaintiffs to construct a supermarket on property located at 1937 West Main Street in Stamford (the "Property"). The development project relates to what is colloquially referred to as a "Super" Stop Shop.
II BACKGROUND
The material facts are not in dispute. The Property consists of approximately thirty-five (35) acres, and is owned by Cytec Industries, Inc. ("Cytec"). The existing use of the Property is as a chemical research and development laboratory, and there are multiple buildings on the Property.
The Property is the subject of an eighty-five year ground lease between Cytec, as owner of the fee and ground landlord, and Stamford Labs Realty Holdings, LLC, as ground tenant of the entire Property. The ground lease provides the foundation for the creation of the common interest leasehold planned community at issue.
Alvord and Stop Shop obtained leasehold interests in the Property by virtue of the following series of related real estate transactions as recorded on the Stamford land records:
(1) Notice of Lease concerning the aforementioned ground lease dated December 4, 2003 and recorded on the Stamford land records on February 4, 2004.
(2) Stamford Labs Realty Holdings, LLC, as Declarant under the Common Interest Ownership Act (the "Act"), created a common interest leasehold planned community (the "Planned Community") known as "West Main and Alvord Commercial Park" with respect to the Property. A Declaration creating the Planned Community was dated December 4, 2003 and recorded on the Stamford land records on February 4, 2004. The Declaration was executed and recorded subsequent to the Notice of Lease relating to the ground lease.
(3) Notice of Lease between Stamford Labs Realty Holdings, LLC, as landlord, and Stamford Labs Realty Holdings-A, LLC, as tenant, concerning Unit A, which was dated December 4, 2003 and recorded on the Stamford land records on February 4, 2004. The lease is for a term of seventy-five years. The lease is designated as a "Space Lease" between Stamford Labs Realty Holdings, LLC, as space lessor, and Stamford Labs Realty-A, LLC, as space lessee, of Unit A. Unit A consists of a volume of space, as opposed to actual real property.
(4) Notice of Sublease between Stamford Labs Realty Holdings-A, LLC, as sublandlord, and Alvord, as subtenant, concerning Unit A, which was dated December 4, 2003 and recorded on the Stamford land records on February 6, 2004. The lease is for a term of seventy-five years less two days.
(5) Memorandum of Lease between Alvord, as landlord, and Stop Shop, as tenant, concerning Unit A, which was dated February 9, 2004 and recorded on the Stamford land records on February 10, 2004. By its terms, the lease expires during the twenty-fifth lease year, subject to certain extensions.
The Declaration creates three "units," as that term is defined under the Act. In a Planned Community created under the Act, the Declarant, Stamford Labs Realty Holdings, LLC, is the legal owner of the units. The units are designated in the Declaration as "Unit A, Unit B and Unit C."
In January 2002, the plaintiffs filed an application for a zoning permit with the ZEO seeking permission to construct a retail food shop/grocery store to be operated by Stop Shop on Unit A. That unit is located in an M-L zone, which is classified as "light industrial." The proposed use is a permitted use in the zoning district.
The ZEO issued a zoning permit to the plaintiffs on December 12, 2003. The permit provided that the site could be used for a chemical research and development laboratory, which was an existing use, and for the proposed use as a Stop Shop store.
The defendants, Zoning Board of Appeals of the City of Stamford, 60 Alvord Lane, LLC, Daniel Stoni, Anthony M. Femia and Kenneth Cosentino appealed the decision of the ZEO issuing the zoning permit to the ZBA. A public hearing relating to the appeal was held on March 24, 2004, and a vote arising out of the hearing took place at a meeting held on April 28, 2004. The ZBA voted 4-1 to sustain the appeal, effectively reversing the decision of ZEO to issue a zoning permit to the plaintiffs. On May 13, 2004, the ZBA published notice of its decision sustaining the appeal in the Stamford Advocate, and thereafter the plaintiffs timely commenced the instant appeal.
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it was created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . ." (Citations omitted; internal quotation marks omitted.)
Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).
A. Aggrievement
The court must begin its consideration of this appeal with a review of the defendants' claim that the plaintiffs are not aggrieved by the decision of the ZBA. "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specifically and injuriously affected that specific personal or legal interest . . ."Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Stauton v. Planning and Zoning Comission, 271 Conn. 152, 157-58, 856 A.2d 400 (2004).
The plaintiffs do not claim that they are statutorily aggrieved. The issue confronting the court is one of classical aggrievement.
The defendants conceded at the hearing of this appeal that the plaintiffs have established a leasehold interest sufficient to prove that they are classically aggrieved. In other words, the plaintiffs have sufficiently demonstrated that they are a tenant, subtenant and/or sublessee of the Property, which are interests in real property sufficient to support aggrievement. The defendants contend, however, that the Declaration establishing the Planned Community is legally invalid because it was recorded in contravention of the provisions of § 47-220 of the General Statutes. The defendants, in essence, make a "fruit of the poisonous tree" argument that the alleged defective Declaration renders all documents filed subsequent to the Declaration invalid and the Planned Community, therefore, improperly declared. It is based on this allegedly "flawed" declaration argument that the defendants contend that the plaintiffs are not statutorily aggrieved.
In view of the foregoing, the sole issue concerning aggrievement is whether or not the Declaration was validly recorded. If the court concludes that the Declaration was properly recorded, then the defendants concede that the plaintiffs are aggrieved.
A declaration is defined in the Act as "any instrument, however denominated, that creates a common interest community, including any amendments to those instruments." General Statutes § 47-202(13). The declaration is required to contain, among other things, the name of the common interest community, a statement that the common interest community is a planned community, the name of the town where the common interest community is located, a description of the real property included in the common interest community, a statement of the maximum number of units that the declarant reserves the right to create, and a description of the boundaries of each unit created by the declaration. General Statutes § 47-224.
"A common interest community may be created . . . only by recording a declaration executed in the same manner as a deed . . . The declaration shall be recorded in every town in which any portion of the common interest community is located . . ." General Statutes § 47-220. "A declaration, or an amendment to a declaration adding units, may not be recorded unless all structural components of all buildings containing or comprising any units thereby created are substantially completed in accordance with the plans, as evidenced by a recorded certificate of completion executed by a registered engineer, surveyor or architect." § 47-220(b).
The following evidence is relevant to the defendants' challenge to the plaintiffs' claim of aggrievement. The Declaration is dated December 4, 2003 and was recorded on the land records of Stamford on February 4, 2004. A series of maps relating to the Property were recorded at the time the Declaration was recorded. The maps contained a certificate of completion as required by § 47-220(b).
The certificate, signed by a licensed surveyor, states, in pertinent part, as follows: "I hereby certify to the best of my knowledge and belief. 1: That there are no buildings constructed on Unit A or Unit C of West Main Street and Alvord Commercial Park, therefore all units are substantially completed. 2: That all structural components of the buildings located on Unit B of West Main and Alvord Commercial Park are substantially completed as that term is utilized in American Institute of Architects document A-201 . . . 4: This certificate is made pursuant to the provision of section 47-220(b) and 47-228 of the Connecticut General Statutes." As previously noted, Unit A is the one at issue.
On January 12, 2005, the plaintiffs recorded an Amended Declaration to include rights to a walking trail and some open space. A series of maps relating to the Property were filed with, and at the same time, that the Amended Declaration was recorded. The maps contained a certificate of completion as required by § 47-220(b), which certificate contains virtually identical language to the prior recorded certificates.
The evidence clearly demonstrates that the Declaration, and the amendment thereto, were properly filed pursuant to § 47-220(b). A certificate of completion, properly executed, was recorded on the land records at the time of the recordings of the Declaration and the Amended Declaration. The defendants offered no evidence to the contrary.
The defendants assert that the Declaration was prematurely recorded, and therefore fatally defective to the formation of a legally proper common interest leasehold planned community. The defendants contend that because construction had not even started on the proposed Stop Shop store at the time the Declaration or the Amended Declaration were recorded on the land records, the licensed surveyor's statutory certification was improper. The defendants claim that the purported improper recording of the Declaration vitiates the plaintiffs otherwise being aggrieved parties by virtue of their leasehold interests. The court disagrees.
The defendants do not cite to any law in support of their argument. The issue presents itself as one of statutory construction.
"Relevant legislation and precedent guide the process of statutory interpretation. [General Statutes § 1-2z] provides that, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn.App. 193, 197, 868 A.2d 807 (2005).
"In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . ." General Statutes § 1-1(a). Our Supreme Court has "consistently held that may is directory rather than mandatory . . . The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion." (Citation omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 531, 800 A.2d 1102 (2002). "The use of the word shall by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive." (Internal quotation marks omitted.) Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). "The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings." (Citation omitted; internal quotation marks omitted.) Waterbury v. Washington, supra, 531.
The statute provides that the "declaration shall be recorded in every town" in which the planned community is located, and " may not be recorded" unless certain building completion requirements are met. The use of the words "shall" and "may" in the same subsection of the applicable statute leads to the conclusion that the legislature knew of the different meanings of the word and intended their different meanings within the statute.
Therefore, the court concludes that the word "may" as it relates to the timing of the plaintiffs' recordation of the Declaration in this case, is directory rather than mandatory. That is, the plaintiffs could have, but were not required, to record the Declaration subsequent to the substantial completion of structural components of any buildings containing or comprising any units, in this case being the Stop Shop building in Unit A. The fact that the plaintiffs filed the Declaration prior to any construction commencing on the Stop Shop building did not affect the validity of the recording of the Declaration.
Furthermore, even if the statutory language were to be construed as mandatory, the court finds that, under the facts of this case, a recorded certificate of completion is not required because there are no structural components of any buildings "containing or comprising any units" created by the Declaration. Therefore, the Declaration was properly recorded.
"We begin with the common usage and ordinary meaning of the words of the statute that are at issue, namely [containing] and [comprising], which are determined appropriately by review of [their] dictionary definition[s]." Robinson v. Gailno, 275 Conn. 290, 298 (2005). The words "containing" and "comprising" have the same definition in the Merriam-Webster Online Dictionary, that being "including." Additionally, the Merriam-Webster OnLine Dictionary defines "comprising" in relevant part as "to be made up of." "In construing the meaning of a statute . . . courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it . . ." Hyllen-Davey v. Planning Zoning Commission, 57 Conn.App. 589, 599, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000).
In the present case, no buildings include or are made up of any units. The units consist of volumes of space, and the boundaries of the units are not defined by any buildings. The plaintiffs' leasehold interests in Unit A derive from a "Space Lease" of that unit. Under these circumstances, the plaintiffs did not have to record a certificate of completion in accordance with General Statutes § 47-220(b).
In view of the foregoing, the plaintiffs recording of the Declaration and the Amended Declaration were proper. The court finds that the plaintiffs are classically aggrieved in that their specific and personal leasehold interests in the Property have been specially and injuriously affected by the decision of the ZBA sustaining the defendants' appeal from the ZEO's decision.
B. Jurisdiction of the Zoning Board of Appeals
The plaintiffs make a convoluted argument that the ZEO had no authority to consider the subdivision issue, and, as a result, the ZBA could not properly consider the issue on appeal. "With the exception of certain provisions contained in . . . the General Statutes . . . planning and zoning in Stamford are governed by . . . the Stamford Charter, rather than by the General Statutes." Sheridan v. Planning Board of Stamford, 159 Conn. 1, 4, 266 A.2d 396 (1969).
The Stamford Charter provides in C6-40-19, in pertinent part, as follows: "The Zoning Enforcement Officer shall . . . enforce all planning and zoning ordinances and regulations." Appeals taken to the zoning board of appeals are governed by General Statutes § 8-7. As an administrative appellate body, "[z]oning boards of appeals do not perform the same functions as zoning commissions. Zoning boards of appeals do not adjudicate initial land use applications, but review those already acted upon by a municipality's zoning commission or enforcement officer." Leo Fedus Sons Constr. Co. v. Zoning Board of Appeals, 225 Conn. 432, 445, 623 A.2d 1007 (1993). In view of the foregoing, the ZBA properly considered the subdivision issue.
The plaintiffs further argue on appeal, for the first time, that the ZEO, and therefore the ZBA, lacked authority to determine whether subdivision approval was required for building development on the Property. As the plaintiffs had not previously raised this issue when they were before the ZBA, the defendants contend that the plaintiffs have waived the claim or, alternatively, the doctrine of exhaustion of administrative remedies applies to bar the claim. The court agrees with the latter.
As a preliminary matter, the court notes that "[t]he requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings . . ." (Internal quotation marks omitted.) Lewis v. Planning and Zoning Commission, 275 Conn. 383, 390 (2005). Accordingly, the plaintiffs have not waived their subject matter jurisdiction claim.
The court, however, is precluded from deciding this issue because it was not initially presented to the ZBA for determination. General Statutes § 4-183(a) which governs appeals from an administrative agency to the Superior Court clearly states that: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . ." (Emphasis added.) "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Connecticut Life Health Insurance Guaranty Ass'n. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).
Moreover, "[i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act — that is to determine the coverage of the statute — and this question need not, and in fact cannot, be initially decided by a court." (Emphasis added; internal quotation marks omitted.) Greater Bridgeport Transit v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989).
Our Supreme Court explained the reasoning behind the exhaustion rule in Francini v. Zoning Board of Appeals, 228 Conn. 785, 794 639 A.2d 519 (1994). In Francini, the court refused to resolve whether the zoning board of appeals had authority to grant a variance for seasonal use, when it had not been decided by the board in the first instance. The court stated, "[t]he requirement that the board first address this issue is consistent with the well settled principle of administrative law that mandates the exhaustion of administrative remedies, a doctrine grounded in the policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions." (Internal quotation marks omitted.) Id.
In view of the foregoing, the court lacks jurisdiction to determine whether the ZBA exceeded their authority in determining whether subdivision approval was required in this matter. Such a jurisdictional claim is properly, and exclusively, within the power of the ZBA to decide in the first instance. As discussed in part III A, the court must search the entire record to determine whether any evidence, not just evidence relating to the subdivision issue, supports the ZBA's action.
III SCOPE OF REVIEW
"General Statutes § 8-6 entrusts [a zoning] commission with the function of interpreting and applying its zoning regulations." Dimopoulos v. Planning and Zoning Commission, 31 Conn.App. 380, 383, 625 A.2d 236, cert. denied, 226 Conn. 917, 628 A.2d 987 (1993). An appeal from an action of a zoning enforcement officer is taken to the zoning board of appeals, which hears and decides the matter de novo. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). "[T]he trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or reasons." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
"The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). The court may grant relief on appeal only where the local authority has acted illegally, arbitrarily, or in abuse of its discretion. Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993). "In light of the existence of a statutory right of appeal from the decision of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right to appeal would be empty." Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56-57, 549 A.2d 1076 (1988).
A. Collective Statement of Reasons Issue
The plaintiffs assert that the ZBA members gave a collective statement of reasons for their decision sustaining the defendants' appeal from the ZEO's decision to issue a zoning permit to the plaintiffs, and that the court should confine its review to those reasons. The defendants claim that the ZBA members gave individual, non-formal reasons for their vote, and the court should search the entire record for any basis supporting the ZBA's decision.
"In order to determine whether the ZBA properly overturned the decision of the ZEO, the court must first consider whether the board gave reasons for its action." See Scalzo v. Danbury, 224 Conn. 124, 129, 617 A.2d 440 (1992); Schwartz v. Planning Zoning Commission, supra, 208 Conn. 152. "Where a zoning agency has stated its reasons for its actions, 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 . . . The [decision] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Citation omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board's decision. Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993). Bloom v. Zoning Board of Appeals, 223 Conn. 198, 208, 658 A.2d 559 (1995).
The record discloses that individual members of the ZBA generally discussed reasons for their vote. A fair reading of the statements show those statements constitute individual utterances of the members prior to voting rather than any official statement of the board as to the reasons for its ultimate vote to overturn the decision of the ZEO to issue a zoning permit. The board did not give a collective, official statement as to the precise reasons for its decision. Accordingly, the court is required to search the record as a whole to determine whether the evidence supports the board's decision to overturn the decision of the ZEO to issue the zoning permit. Parks v. Planning Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979).
The court's review of the record leads to the conclusion that the action of the ZBA overturning the decision of the ZEO to issue a zoning permit to the plaintiffs to construct a Stop Shop is not supported by the evidentiary record. The ZBA acted illegally, arbitrarily and in abuse of discretion.
B. Subdivision Approval Issue
Even if this court were to determine whether the ZBA had the authority to decide whether subdivision approval was required as discussed in part III B, the record clearly shows under the circumstances of this case that the plaintiffs were not required to obtain subdivision approval from the planning commission prior to any zoning permit being issued. Subdivision approval was not required because the plaintiff's proposed use of the Property did not involve a division of it. There were no lots created, and the plaintiffs' use of the Property was a matter of right under the applicable zoning laws.
Subdivision is defined in § 8-18 of the General Statutes as follows: "subdivision means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development . . ."
The Stamford Charter provides in the relevant portion of Section C6-30-19 that "subdivision shall mean the division of a lot parcel or tract of land into two or more lots for the purpose, whether immediate or future, of sale or building development . . ."
The Stamford Zoning Regulations, in Article II, Section 3A.55 defines "lot" in pertinent part as "[a] parcel of land to be occupied by a building or group of buildings and their accessory uses . . ."
The Stamford Subdivision Regulations, as adopted July 12, 1988 and effective September 1, 1988 provide in pertinent part as follows:
2.5 Lot means a parcel or portion of land separated from other parcels or portions by description as a subdivision or record survey map, by metes and bounds for purposes of sale, lease or transfer.
2.14 Subdivision means the division of a lot, parcel or tract of land into two or more lots or other division of land for the purpose, whether immediate or future, of building development, and shall include re-subdivision and minor modification of the dimension of two existing lots where no additional building lots are actually created, but which would result in a greater intensity of development than previously existed on other parcels.
These provisions make clear that, by any applicable definition, a subdivision requires that there be a division of the land at issue. See, e.g., McCrann v. Town Planning Zoning Commission, 161 Conn. 65, 70, 282 A.2d 900 (1971) ("The site in question was created by combining two tracts of land to make one parcel . . . There was no division of a tract . . . and . . . there was no subdivision"). Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 764-65, 755 A.2d 329, cert. denied, 254 Conn. 930 (2000) ("land transferred from lot two to lot one was never divided from a whole parcel of land; rather it remained, at all times, as part of a larger parcel of land. Furthermore, the land never was sold separately or intended to be used for development, it simply was added to the adjacent parcel." [In McCrann], our Supreme Court held that where a site for elderly housing was created by combining two lots to make one parcel, but there was no division of the tract into three or more parts or lots, there was no "subdivision.").
The plaintiffs proceeded within the statutory framework of the Act in creating a common interest leasehold planned community consisting of defined units: "The Common Interest Ownership Act is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act . . . A `common interest community' is defined chiefly by the fact that each unit owner is obligated to pay certain charges, such as taxes and insurance premiums, attributable to common property held jointly by the owners through their association. General Statutes § 47-202." Nicotra Wieler Inv. Management, Inc., v. Grower, 207 Conn. 441, 447, 541 A.2d 1226 (1988).
"CIOA affords the purchaser of a [unit] fee simple ownership of his unit while sharing with other unit owners the burdens and benefits of the community's common elements. CIOA is a detailed statutory scheme governing the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners. It entails the drafting and filing of a declaration describing the location and configuration of the real property, development rights, and restrictions on its use, occupancy and alienation; General Statutes 47-220, 47-224; the enactment of bylaws; General Statutes 47-248; and the establishment of a unit owners' association; General Statutes 47-243; and an executive board to act on its behalf. General Statutes 47-245. It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements, the placement of insurance, and the provision for common expenses and common liabilities. General Statutes 47-244, 47-245, 47-255, 47-249." Wilcox v. Willard Shopping Center, 208 Conn. 318, 326-27 (1988).
The record demonstrates that the plaintiffs properly formed a common interest community under the Act. Such a community does not require that the subject land be subdivided, or that lots be created. Real property as defined under the Act "includes parcels with or without upper or lower boundaries and spaces that may be filled with air or water." General Statutes § 47-202(26). The boundaries of the units are described in the Declaration generally as vertically extending to the heavens, and horizontally as the surface of the land. The Declaration further provides that all of the space below the surface of the land is undivided and remains a common element. Consequently, the units set forth in the Declaration are properly comprised of air space from the surface of the land to the heavens.
Further, the record contains an abundance of evidentiary support that the project at issue was in accord with the applicable zoning laws. For example, the record contains a memorandum from Robert Stein, Land Use Bureau Chief, to James Lunney, III, the ZEO dated March 23, 2004, the day prior to the hearing before the ZBA, regarding his review of the Cytec/Stop Shop Supermarket Application #014-04 (1 page). He states, in pertinent part, as follows:
I have reviewed the appeal of your decision to grant a permit to construct a retail/grocery store on the premises of Cytec Industries, Inc. at West Main Street and Alvord Lane. In my opinion, the property does not require a subdivision of the Cytec property.
The record shows that ZEO James Lunney referred to the foregoing memorandum during his testimony at the public hearing on March 24, 2004, when he stated the following:
I believe you also have a letter in your file from Robin Stein who is my boss who is the Land Use Bureau Chief indicating that in his opinion, there was no subdivision required for this particular project. Robin is the one that decides if it's a two lot subdivision. If you need to go for a Public Hearing or not, he is the liaison to his Board and he has indicated that after reviewing the file, that he doesn't feel that it needed to have a subdivision either . . . That's not a valid situation because on the Cytec property, they could legally build buildings all over that property, legally as-of-right.
The record also reflects that at the ZBA public hearing on March 24, 2004, ZEO James Lunney repeatedly asserted that no subdivision of the Property was required and gave detailed reasons in support of his position:
The bottom line is, there is no subdivision requirement. A piece of property can be used for more that one use. If Cytec wanted today to build a four story fifty foot high building that was going to be used for a trucking warehouse with twenty-four hour access and lit up all night long — they could come it tomorrow and they could build it provided that they met the other requirements, such as setbacks . . .
It doesn't trigger a subdivision. It does not trigger a subdivision if they just wanted to put ten buildings on there. They don't have to subdivide each section and put a building on it. They could do it as one piece of property.
[T]he argument here is that they should have went for a subdivision. But my argument to you is, they didn't subdivide the property. The property is one piece of property.
And the other issue is, was a subdivision required, and I would represent to you tonight that it is not required. It is not required because the land is not separated. The land is one parcel. If you look anywhere, you will never see that it says that it is two separate parcels.
And just to touch on what Cytec could do. They are allowed to build quite a lot of property They could cover, if they wanted to, ninety percent of that property and it would be a floor area ratio, so depending on how many stories, it would be regulated. Technically, they could cover ninety percent of that property. There is no time frame for what they want — if they wanted to run a trucking company or an oil company or anything twenty-four hours a day seven days a week, three hundred and sixty-five days a year and there's nothing anyone would be able to do about it. The same way the supermarket could open there. You really can't — you can't deny somebody their rights. They have rights to that property, as of right use. That's what they have. And as of right use, it didn't require subdivision.
Everybody keeps saying that there was a lot created but it wasn't created. There's nowhere where you can document where they cut it, and I will be honest. You know, in the beginning, that's probably what they wanted to do. If the end result is because someone comes in to you and wants to do something they can't do and then they take a legal avenue that allows them to do something, you can't say, well, originally it came in for something else. That's not in my purview either. If the law says you can do it, you can do it. If the law says they can do it, the regulations are very clear. This is very cut and dry and unfortunately, sometimes the cut and dry issues get very smoky and very unclear. They're very clear to me, but keep in mind, I had a year and a half to think about this. You guys have, I don't know — I guess you've been here four hours to think about this. And the people that live there have plenty of time to think about it because they're thinking about, well, you know, what's going to happen to my quality of life and I feel for them. And I am not saying they don't have valid issues. I'm just saying there are issues. While I feel for them as a person, I can't address them in my capacity as the Zoning Enforcement Officer for the City of Stamford.
That property is going to be taxed as one parcel. That's one property. From the tax records, its going to be one property . . .
It is important to note that the ZEO acknowledged the concerns of the neighbors affected by this Planned Community. Notwithstanding, in issuing the zoning permit the ZEO recognized the legal rights of the plaintiffs to proceed under the Act and the applicable zoning laws to construct the proposed Stop Shop as an "as of right" use of the Property. Contrarily, it appears that the ZBA found the neighbors interests to be an overriding factor in reversing the decision of the ZEO to issue the zoning permit. The action of the ZBA is unsupported by the record.
C. Food Shop Retail
The Application for Zoning Approval sought permission to "construct a retail food shop/grocery store" on the Property. The record supports the fact that, under the applicable zoning laws, such a use is a permitted one in the zone.
The "Food Shops, Retail" classification appears in the Zoning Regulations of the City of Stamford as an undefined use; that is, there is no definition other than the common usage of those terms and their practical application. The classification is merely listed in the "Land Use Schedule," which is an appendix to the regulations. The schedule shows that such a use is permitted in the M-L zone at issue.
The defendants claim that a "Super" Stop Shop such as the one in the instant action is really in the nature of a department, retail-style store as opposed to a traditional grocery store. Therefore, the undefined "Food Shops, Retail" land use classification is improper. Counsel for some of the defendants recognized the inherent weakness in their argument under the existing land use classification in stating the following at the public hearing:
[I]t should not be classified as a food shop retail but rather as a department store shopping center or retail store discount which are not permitted uses in the M-L or R-5 zones . . . unfortunately the Zoning Board has not gone back and revised or come up with a definition, so the issue is before us again tonight.
In my opinion, the zoning regulations as to this definition, were probably sufficient when they were originally written but it has evolved and I don't think the definition works well in 2004 . . . The Zoning Board should address this issue and take action. I realize that his request is beyond the domain of this board, however, a vote to sustain the appeal would send a signal to the Zoning Board that it is time to remedy this definitional problem.
Although undefined in the zoning regulations, there was sufficient evidence in the record, in the form of the zoning regulations and testimony, to support the conclusion that the Stop Shop was properly classified as "Food Shop, Retail" under the zoning regulations. ZEO Lunney succinctly discussed at the public hearing why the proposed use was properly classified as "Food Shops, Retail," which is a permitted use in the M-L zone. He testified as follows:
I would assume that it is safe to say that at this point in time, the definition that we have for food shop retail is pretty much on that doesn't exist with the exception of what we have for past practice, which is grocery store supermarket, the Grade A, Shoprite, Stop Shop. They are all food shop retails . . . The bottom line is, we have no other definition . . . No one has made any effort to change the rules. We have to go by what we have.
The record clearly shows that the subject Stop Shop meets the classification of "Food Shop, Retail" as set forth in the zoning regulations. As testified to by ZEO Lunney, present day grocery store supermarkets have been approved under that classification. Whether the classification should be amended or revised to better reflect today's times is of no moment. Any determination by the ZBA to the contrary is not supported by the record.
IV CONCLUSION
In view of the foregoing, the plaintiffs' appeal from the decision of the ZBA reversing the decision of the ZEO to issue a zoning permit to the plaintiffs relating to the construction of a Stop Shop is sustained.
THE COURT
Tyma, J.