Opinion
No. FST CV 10-6004978 S
January 11, 2011
Memorandum of Decision
Pursuant to General Statutes § 8-8, the plaintiff appeals from a decision of the Zoning Commission of the City of Norwalk (the "Commission"). That decision approved the application of defendant Norwalk Hospital Association (the "Hospital") for a special permit to construct a new 628 space garage in place of an existing 430 space garage. The plaintiff claims to be aggrieved by the Commission approval and asserts that, in approving the Hospital's application, the Commission acted illegally, arbitrarily and in abuse of its discretion.
The record establishes that the Plaintiff owns property located at 50 Connecticut Avenue in Norwalk. Three residential buildings containing 29 residential units are located on the property. The property has frontage on Connecticut Avenue, Elmcrest Terrace and Woodbury Street. It has vehicular access from Connecticut Avenue and Woodbury Street.
Both the plaintiff's complaint and brief, dated October 1, 2010, claimed statutory aggrievement as well as classical aggrievement. However, on January 4, 2011 when the court heard evidence on the issue of aggrievement, the plaintiff conceded that it could not demonstrate statutory aggrievement. The evidence shows that the plaintiff's property is approximately 189 feet from the closest part of the Hospital's property and 959 feet from the location of the Hospital's parking garage. (Ex. 3.)
The plaintiff claims to be classically aggrieved by virtue of the presence of 54 on-street public parking spaces on Elmcrest Terrace located between its property and Stevens Street and 45 on-street public parking spaces on Woodbury Street located between its property and Stevens Street. It is the plaintiff's fear that during the construction of the new garage, the Hospital will experience a deficit in parking leading to higher utilization of on-street parking in the vicinity of its property. The plaintiff does not claim that the increased capacity of the new garage will have a negative impact on its property. Plaintiff's claims and concerns are limited to the period beginning with the deactivation of the Hospital's existing parking garage and the completion of the new garage — a period of twelve to fourteen months.
In support of its claim of aggrievement, the plaintiff called a single witness, James Phillips, who acts as property manager on behalf of the plaintiff. Phillips identified the plaintiff's property on an aerial photograph which included the plaintiff's property and the Hospital's property. (Ex. 1.) Phillips testified that for the previous ten years he had visited the plaintiff's property on a weekly basis to conduct property inspections, oversee maintenance and repair and to meet with leasing agents. His visits were conducted only on weekdays during business hours and usually did not last longer than an hour. The visits did not occur at the same time of the day and could be as early as 8:00 a.m. or as late as 5:00 p.m. Phillips reported that on many occasions parking on Woodbury Street and Elmcrest Terrace were heavily utilized. He noted, in particular that two-way traffic on Woodbury Street is difficult when the on-street parking spaces are in use. He described the traffic situation on both Woodbury Street and Elmcrest Terrace as "congested."
Phillips stated that the plaintiff leases its residential units on one year leases. He expressed concern that increased use of the on-street parking in the neighborhood while construction of the Hospital's new garage was underway would discourage existing tenants from renewing their leases and new tenants from deciding to rent from the plaintiff. Despite his concerns over increased utilization of on-street parking, Phillips testified that the plaintiff's tenants had adequate parking on the plaintiff's property.
In further support its claims of aggrievement, the plaintiff offered a copy of an assessment of parking supply and demand prepared for the Hospital by Vanasse Hangen Brustlin, Inc. a civil engineering firm. (Ex. 2) The assessment included an analysis of on-street parking in the vicinity of the Hospital which showed the following: (1) by 9:00 a.m. on-street parking spaces were over 70% occupied; (2) by 10:00 am occupancy had risen to 80%; (3) peak usage occurred at approximately 11:00 a.m. when occupancy approached 90%; (3) from noon until 3:00 p.m. utilization was slightly below 80%; and (4) after 3:00 p.m. utilization dropped markedly reaching a low of 40% at 6:00 p.m. Despite the plaintiff's claims to the contrary (see plaintiff's brief p. 3), the assessment did not indicate that the Hospital intended to rely upon increased utilization of on-street parking to meet the deficit in parking which would exist between the time of the old parking garage was removed from service and the new garage was ready for occupancy.
In opposition to the plaintiff's claims of aggrievement, the Hospital presented testimony from Robert Haynes, the Hospital's executive director of facilities, Steven O'Neill, an engineer employed by Vanasse Hangen Brustlin, Inc., and Douglas Faluds, a licensed land surveyor. Haynes testified as to the Hospital's plan to rent a parking lot from the owner of an unoccupied office building located at 100 Connecticut Avenue, in the vicinity of the Hospital, and to provide a shuttle service from the Hospital to the lot. The parking lot, which is shown on Exhibit 1, contains 408 spaces and the Hospital's lease provides that it will have access to no less than 225 of those spaces through January 2012. Haynes further testified as to 60 additional parking spaces available to the Hospital at 520 West Avenue which would also be reached by the Hospital's shuttle service. In addition he confirmed that, as a back-up plan, the City of Norwalk was prepared to allow the Hospital exclusive use of portions of a municipal parking garage which would be served by the shuttle service. On cross-examination Haynes, acknowledged that he could not prevent Hospital employees, patients and visitors from using on-street parking near the plaintiff's property, if they found such parking to be more convenient.
O'Neill testified that, based on his studies of traffic and parking, there would be negligible impact on traffic during the construction of the new parking garage. Any increased traffic resulting from operation of shuttle service would be more than off-set by the reduction in traffic resulting from the unavailability of the parking garage during construction.
Faluds testified as to preparation of a survey (Ex. 3) showing the distance between the plaintiff's property and (1) the closest portion of the Hospital's property; (2) the location of the Hospital's garage; and (3) the parking lot at 100 Connecticut Avenue which the Hospital is leasing during construction.
DISCUSSION
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400 (2007). "Because aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict." (Internal quotation marks omitted.) Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257 (2001).
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 394 (2008). "Mere generalizations and fears do not prove that an appellant is an aggrieved person." Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 668 (1989). Furthermore, unfounded concerns and worries do not result in classical aggrievement. Walls v. Planning Zoning Commission, 176 Conn. 475, 477-78 (1979) (no aggrievement when plaintiffs "expressed `concern,' `fear' and apprehension' that the [subdivision] approval might result in increased traffic" but "no specific evidence was offered . . . to support those fears").
Courts in Connecticut have routinely denied standing to appellants who allege aggrievement based on general concerns that may be shared by everyone in the appellants' communities. In Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 533 (2003), the Supreme Court affirmed a trial court's ruling that a supermarket owner was not classically aggrieved on the basis of increased road traffic after the supermarket owner appealed the decision of a local zoning board to grant a permit to another supermarket. The Supreme Court characterized the trial court's decision that "the subject intersection will become more congested for everyone passing through it, including, but not limited to, those customers of the plaintiffs who choose not to use alternate routes" to be dispositive of the matter. (Emphasis in original.) Id., 543. Because "the [trial] court's findings merely reflect that the plaintiffs own property near an intersection that will be more congested as a result of the defendants' proposal," "the trial court properly determined that any specific personal and legal interest the plaintiffs had in the subject matter had not been specially and injuriously affected by the board's decision affirming the decision to grant the defendants' application for a permit." Id., 543-44.
In Gorecki v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 95 74699 (July 7, 1995, Stanley, J.), the plaintiffs, who owned property "within the general vicinity" of a proposed shopping center in Clinton, appealed from the approval of a site plan and alleged standing via classical aggrievement. The plaintiffs claimed that "they will have to endure delays in getting out of their driveways and street as a result of the increased traffic in the area and, further, that this increased traffic will present a safety hazard for themselves and their families." Id. The court denied standing, ruling that "the relevant credible evidence shows that the plaintiffs have failed to demonstrate a specific, personal and legal interest which is distinguished from a general interest which might be [of] concern to all members of the Clinton community in that section of the town." Id. Similarly, another court denied standing to a group of plaintiffs pursuing a zoning appeal related to a proposed shopping center in Branford. Whalen v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 94 0356643 (May 3, 1994, Booth, J.). In that case, the plaintiffs alleged that the shopping center would cause increased traffic on a state highway that their streets feed into, but the court ruled that the plaintiffs were not classically aggrieved because "none of the plaintiffs has successfully demonstrated a specific, personal and legal interest in the subject matter of the decision nor an interest which is distinguished from a general interest such as would be the concern of all members of the community in that section of Branford" and "none of the plaintiffs has successfully established that their claimed specific, personal and legal interest has been specially and injuriously affected by the decision appealed from." Id.
In Hutchings v. State Traffic Commission, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 99 0160453 (September 22, 2000, Hodgson, J.) ( 28 Conn. L. Rptr. 208), the plaintiffs appealed from a state commission's granting of a traffic application related to the development of a shopping center. Id., 209. The plaintiffs argued "that they use the roads that will be affected by traffic from the proposed mall to commute to their businesses and jobs and to health care facilities and that they will be delayed and subjected to greater risk of motor vehicle accidents because of increased volume of traffic." Id., 211. Applying Connecticut's twofold test for classical aggrievement, the court ruled that the plaintiffs were not classically aggrieved, noting that "[a]nyone wishing to use the roads at issue has, of course, a right to do so" and that "[t]he plaintiffs have alleged no specific personal legal entitlement concerning their use of these roads or the volume of traffic on them, as might be present if they were owners of a private roadway." Id.
In Klevens v. Deep River Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 06 4005612 (September 14, 2007, Aurigemma, J.), the plaintiffs appealed a local zoning commission's approval of a redevelopment and claimed classical aggrievement based on "1) increased traffic; 2) damage to their business and 3) diminution in the value of their real property." The court denied the plaintiffs standing, ruling that "[t]ypically a general increase in traffic cannot form the basis of classical aggrievement because any increase in traffic affects the entire neighborhood generally, not the plaintiff specifically" and that "[t]here was no evidence that the minimal increase in traffic generated by the . . . project would affect the [plaintiffs] in any manner specific or distinct from the rest of those in the general area. Id.
In Carlson v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0189484 (January 13, 2004, Black, J.), the court considered a claim that increased utilization of on-street parking in the vicinity of the plaintiff's property would constitute aggrievement. In that case, property owners appealed the decision of a municipal commission re-zoning the Greenwich YMCA and approving its construction and site renovation. One of the plaintiffs, whose property did not meet the statutory definition of aggrievement, argued that he was classically aggrieved because the YMCA's new swimming pool and an alleged increase in membership would lead to "increased traffic and parking following expansion and increased truck traffic during construction" on the street corner outside his property. Id. One of the streets that meets at the corner was one of the "only [two] residential streets within one hundred feet of the YMCA property which allow curbside parking." Id. The court ruled that the plaintiff failed to establish classical aggrievement under the twofold test because he "failed to persuade the Court that this increased traffic would affect him personally as opposed to all the citizens of Greenwich who would use these two roads in the vicinity of the YMCA." Id.
In this case, the evidence suggests that during the construction of the new parking garage traffic on Woodbury Street and Elmcrest Terrace would, if anything, be diminished. With respect to the public parking spaces located on those streets, the plaintiff has failed to demonstrate any direct or specific interest in those parking spaces sufficient to constitute classical aggrievement.
In absence of aggrievement the court is without jurisdiction to consider the plaintiff's appeal. The appeal is, accordingly, dismissed.