Opinion
FBTCV186074152S
02-14-2019
INTERNATIONAL INVESTORS v. FAIRFIELD TOWN PLAN & ZONING COMMISSION et al.
UNPUBLISHED OPINION
RADCLIFFE, J.
FACTS
The Defendant, Fairfield Commons, LLC, is the owner of property known as 1125 Kings Highway, Fairfield. The parcel consists of approximately 3.6 acres, and is located in a Design Commercial District.
1125 Kings Highway is bounded by the Metro North Railway to the west, and by a Super Stop and Shop Supermarket to the south. The property has street frontage on Kings Highway Cutoff to the east.
This property has been the subject of development proposals since 2005, when the Defendant, Fairfield Town Plan and Zoning Commission, denied a proposal for a shopping center on the undeveloped parcel. Following that denial, the Defendant, Fairfield Commons, LLC, filed an application for a special permit with the Town Plan and Zoning Commission, seeking permission to construct a 36, 000-square-foot retail building. A coastal area management (CAM) site plan was also submitted.
On April 11, 2006, the Fairfield Town Plan and Zoning Commission voted, 6-1, to approve the special permit and coastal site plan applications. The special permit was subject to ten (10) specific conditions.
Approval of the proposal generated an appeal to the superior court, which precluded any development of 1125 Kings Highway for three (3) years.
On April 8, 2009, the Connecticut Supreme Court dismissed the appeal (Lamar Company of Connecticut, LLC v. Fairfield Town Plan & Zoning Commission, SC18204), effectively removing a potential impediment to development.
Because a timely appeal of the action of the Fairfield Town Plan and Zoning Commission was taken in 2006, and that appeal was not resolved until 2009, the effective date of the approval corresponds to the dismissal of the appeal on April 8, 2009. Bochanis v. Sweeney, 148 Conn.App. 616, 633-34 (2014); Dean-Moss Family Limited Partnership v. Five Mile River Works, Inc., 130 Conn.App. 363, 375 (2011); Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 802 (1993).
Because the proposal submitted by Fairfield Commons, LLC, involves new construction in a Design Commercial District, a special permit is required (see Section 12.0, Fairfield Zoning Regulations).
On the date of approval, April 8, 2009, Regulation 2.23.5 of the Fairfield Zoning Regulations read:
Approval or approval with modifications shall constitute approval conditioned upon completion of the proposed use in accordance with the Zoning Regulations within a period of two (2) years from the date of such approval.
Section 2.23.6(a) of the Regulations provided:
Upon failure to complete within such two (2) year period, the approval or approval with modifications shall become null and void, unless an appeal to court is filed within such period, whereupon the two (2) year period shall commence from the date of the final determination of such appeal. Three (3) extensions of such period for an additional period not to exceed one (1) year may be granted ...
On April 8, 2009, the date of approval, Section 8-3(i) and Section 8-3(m) of the General Statutes governed site plan approvals. Section 8-3(i) declares:
In the case of a site plan approved after October 1, 1984 ... all work in connection with such site plan shall be completed within five years after the approval of the plan ... "work" for purposes of this subsection means all physical improvements required by the approved plan.
Section 8-3(m) reads:
Notwithstanding the provisions of this section, any site plan approval made under this section prior to July 1, 2011, that has not expired prior to May 9, 2011 ... shall expire not less than nine (9) years after the date of such approval.
Nine (9) years after April 8, 2009 is April 8, 2018.
Five (5) years after April 8, 2009 is April 8, 2014.
On February 8, 2011, the Defendant, Fairfield Town Plan and Zoning Commission, amended Section 2.23 of its Regulations (ROR 3). The new Regulation 2.23 conformed the municipal zoning regulations with the time periods provided in the General Statutes. The Regulation as amended reads:
Whenever a public hearing on an application is to be held pursuant to the requirements of the foregoing sections of the Zoning Regulations, the procedure for which is set forth in Section 2.39 of the Zoning Regulations, the Commission shall proceed in accordance with the requirements of the Connecticut General Statutes.
On February 15, 2011, in the wake of this change in the Fairfield Zoning Regulations, Fairfield Commons, LLC requested confirmation from the Town of Fairfield that the expiration date of its site plan and special permit was April 8, 2014. Written confinnation was provided by the Town of Fairfield.
Because development of 1125 Kings Highway had not begun, on March 19, 2018, Fairfield Commons, LLC requested of the Town Plan and Zoning Commission extensions of the special permit and coastal site plan approvals until April 8, 2023 (ROR 1). The owner of Stop and Shop Plaza, International Investors, objected to the extension (ROR 2).
International Investors claimed that the special permit approval expired based upon the municipal regulations in effect prior to the February 2011 Amendment. It also claims that the Amendment has only prospective affect, and does not effect the action taken on April 11, 2006.
The Plaintiff also maintains the Section 8-3(i) and Section 8-3(m) of the General Statutes, to the extent that they are applicable, apply only to the coastal area management (CAM) site plan, and not to the special permit component of the approval.
On April 9, 2018, the Fairfield Planning Director, James Wendt, sent an email and a memorandum (ROR 3). He opined that the Town Plan and Zoning Commission could extend the permit issued for 1152 Kings Highway Cutoff for another period of five (5) years. He declared that the Commission’s Amendment to Section 2.23 of the Regulations in February of 2011, extended the approvals to April 8, 2014, and that a subsequent act of the General Assembly, effective May 9, 2011 (Public Act 11-5), provided for a nine (9) year extension by operation of law, making the expiration date April 8, 2018 (ROR 3).
On April 10, 2018, the Fairfield Town Plan and Zoning Commission voted, unanimously, to extend the approval for an additional five (5) years, or until April 8, 2013 (ROR 6, p. 6; ROR 7). No collective reasons were given by the Commission in support of its action.
From that decision, the Plaintiff, International Investors, brings this appeal.
AGGRIEVEMENT
The Plaintiff, International Investors, a general partnership, acquired title to 1206 Kings Highway Cutoff in 1994, via a quitclaim deed from four (4) grantors, The Estate of Peter Dinardo, Alfred Lenoci, Donald Sherman and Matthew Vetro (Ex. 2). The deed was recorded at Volume 1358, Pages 11-13, of the land records of the Town of Fairfield.
Property was also acquired from Tal Realty Company, as Trustee for International Investors and Tal Realty Co., Inc., in a warranty deed dated May 27, 1997, and recorded at Volume 1704, Page 94, of the Fairfield Land Records (Ex. 1).
1260 Kings Highway Cutoff abuts 1125 Kings Highway, the property which is the subject of the April 10, 2018 action of the Fairfield Town Plan and Zoning Commission. International Investors has owned the property at all times, while this appeal has been pending.
Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an appeal. Stauton v. Planning & Zoning Commission, 271 Conn. 153, 157 (2004); 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). The burden of proving aggrievement rests with the party claiming to be aggrieved. London v. Zoning Commission, 149 Conn. 282, 284 (1962). One claiming aggrievement must sustain its interest in the property throughout an appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
Aggrievement falls into two (2) basic categories— statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by virtue of legislative fiat, and is a recognition of a right to appeal without regard to an analysis of the facts of a particular case. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665 (2006); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190 (1992). One claiming statutory aggrievement must show that a particular statute grants standing to 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 (2005); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87 (2003).
Classical aggrievement, on the other hand, requires a party to satisfy a well-established two-fold test: 1) the party claiming to be aggrieved must demonstrate a personal and legal interest in the decision appealed from, as distinct from a general interest such as a concern of all members of the community as a whole, and 2) the party must prove that the interest has been specifically and injuriously affected by the decision of the land use agency. Cannavo Enterprises v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
Section 8-8(1) of the General Statutes defines "Aggrieved person" to mean:
... any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board ...
The Plaintiff, International Investors, owns 1206 Kings Highway Cutoff. It abuts 1125 Kings Highway, the property subject to the April 10, 2018 decision of the Fairfield Town Plan and Zoning Commission.
It is therefore found, that the plaintiff has satisfied the test for statutory aggrievement, and the court has jurisdiction to entertain this appeal.
Because International Investors is found to be statutorily aggrieved, it is not necessary to consider any claim of classical aggrievement.
STANDARD OF REVIEW
When ruling upon an application for a special permit, a planning and zoning commission sits in an administrative capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627 (1998). Conclusions of the commission must be upheld, if supported by substantial evidence in the record, and, on factual issues, a reviewing court cannot substitute its judgment for that of the zoning authority. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 389, 401 (1992).
In reviewing a site plan application, the commission also acts administratively. Carr v. Bridgewater, 224 Conn. 44, 54 (1992). A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Connecticut Resource Recovery Authority v. Zoning Commission, 46 Conn.App. 556, 570 (1997).
However, because the only action taken by the Defendant, Fairfield Town Plan and Zoning Commission, on April 10, 2018, involved the extension of approvals previously granted by the Commission, the court is not called upon to evaluate the terms and conditions of the special permit or the site plan. The only question is whether the action extending the approvals was lawful.
The issues in this appeal do not involve factual disputes, or questions of credibility. All of the issues concern the interpretation and application of provisions of the General Statutes, Zoning Regulations of the Town of Fairfield, and the interplay between those statutes and regulations.
When called upon to interpret a municipal ordinance, or a zoning regulation, a reviewing court is presented with a question of law, and the review is plenary. Campion v. Board of Aldermen, 278 Conn. 500, 508 (2006); Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001). An ordinance or a zoning regulation is a legislative enactment, and the same canons of construction used in interpreting statutes are applicable to the municipal regulations. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153 (1988); Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 604 (2002). The words employed in a municipal ordinance or regulation, or a statute, should not be expanded beyond their express terms. Pellicone v. Planning & Zoning Commission, 64 Conn.App. 320, 335-36 (2001).
Although the position of a municipal agency is entitled to some deference, when the issue involves a question of law, a court is not bound by a legal interpretation made by a land use agency. Cunningham v. Planning & Zoning Commission, 90 Conn.App. 273, 283-84 (2005); Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn.App. 284, 293 (1997).
Where the agency’s determination of a question of law has not previously been the subject of judicial scrutiny, no special deference is accorded to the land use body. Cunningham v. Planning & Zoning Commission, supra, 279-80.
SECTIONS 8-3(i) AND 8-3(m) DO NOT APPLY TO THE SPECIAL PERMIT WITH AN APPROVAL DATE OF APRIL 8, 2009
The Defendant, Fairfield Commons, LLC, claims that the "site plan" approved by the Commission in 2006, encompasses the entire package of documents submitted to the Town Plan and Zoning Commission for approval. Therefore, the property owner maintains, use of the term "site plan" in Section 8-3(i) and Section 8-3(m) of the General Statutes, includes the special permit which was part of the same application.
The Plaintiff, International Investors, insists that the coastal area management (CAM) site plan and the special permit involve separate and distinct approvals, and that the unambiguous text of Section 8-3(i) and Section 8-3(m) apply only to a "site plan."
Therefore, the Plaintiff argues, even assuming, arguendo, that the February 2011 amendment to Section 2.23 of the Zoning Regulations validly applied the provisions of state law, the new Regulation has no impact upon the approved special permit.
The court agrees with the Plaintiff, that the state statutes cited by the Defendant do not apply to the approved special permit, and that there is a clear and marked distinction between a "special permit" and a "site plan" in both the Connecticut General Statutes, and case law.
A special permit permits a property owner to use its property in a manner which is expressly permitted by the zoning regulations. A.P. & W. Holding Corporation v. Planning & Zoning Commission, 167 Conn. 82, 85 (1984); Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 169-70 (2004). Although a special permit enables a property owner to use its property in a manner which is permitted by the zoning regulations, a permit must be obtained because the nature of the use is such that the location and operation must be regulated, due to such considerations as topographical conditions, traffic problems and neighborhood uses. Barbarino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 612 (1992).
In a municipality not governed by a special act of the General Assembly, a municipal planning and zoning commission derives its authority to issue a special permit from Section 8-2 of the General Statutes. The statute provides, in relevant part:
... regulations ... may provide that certain ... uses of land are permitted only after obtaining a special permit ... subject to standards set forth in the regulations and conditions necessary to protect public health, safety, convenience and property values ...
Even though a municipal planning and zoning commission sits in an administrative capacity when reviewing a special permit application, the process is not purely ministerial. A commission has a right to interpret its regulations, and to determine whether a particular regulation applies, and whether general standards concerning health, safety, and welfare have been satisfied. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177 (1994); St. Joseph’s High School, Inc. v. Planning & Zoning Commission, 176 Conn.App. 570, 599 (2017). The exercise of a commission’s liberal discretion is inherently fact specific, and requires an examination of the particular circumstances of the precise site, and the characteristics of the neighborhood. Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 457 (2003).
Because of its site specific nature, a commission is entitled to affix conditions to a special permit, in order to protect "... the public health, safety convenience and property values."
When reviewing a site plan, a commission also acts administratively. However, in the site plan review process, a commission has no independent discretion, beyond determining whether the plan complies with applicable regulations. Kosinski v. Lawlor, 177 Conn. 420, 427 (1979); Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn.App. 506, 512 (1984).
The filing of a site plan, in accordance with Section 8-3(g)(1) of the General Statutes is permissive. The statute states that a commission "may require" a site plan.
Section 8-3c(b) of the General Statutes mandates that a public hearing take place when an application for a special permit is submitted for approval. The statute provides:
The zoning commission or combined planning and zoning commission ... shall hold a public hearing on an application or request for a special permit ... as provided in section 8-2 ...
No comparable statute applies to site plans.
The Defendant, Fairfield Commons, LLC, maintains that SMG Associates, Ltd. v. Town Plan and Zoning Commission, 211 Conn. 331 (1989), a Fairfield case, supports its claim that the coastal site plan and special permit should be viewed as a single, inseparable approval.
This claim is not well taken.
In SMG Associates, the parties stipulated, in the trial court, that an application for a special permit includes the submission of a site plan, which is inseparable from the requirement to secure a special permit. Therefore, the court found, there was no factual basis in the record to distinguish the special permit and the site plan. SMG Associates, Ltd. v. Town Plan & Zoning Commission, supra, 336.
No such stipulation or agreement is present here.
In Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183 (2006), the Supreme Court, while not directly overruling SMG Associates Ltd. v. Town Plan & Zoning Commission, supra, limited its holding to the narrow factual pattern in the case. Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 191-92.
The court in Center Shops held that the special permit and site plan were not inseparable, and do not meld into a single entity. The critical distinction involves the basic rationale for obtaining a special permit, where the mode of operation and use must be regulated in a site specific fashion. Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 191-92.
Even in a situation in which a municipal regulation requires a special permit application to contain a site plan, that fact, in and of itself, does not trigger the automatic approval provisions of Section 8-3(a) and 8-7(d) of the General Statutes. Lauver v. Planning & Zoning Commission, 60 Conn.App. 504, 514-15 (2000). Furthermore, the provisions of Section 8-3(g) of the General Statutes relate only to applications for site plan approval, and are inapplicable to an approval of the special permit. Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn.App. 216, 223 (2003).
Given these clear distinctions between special permits and site plans, the Fairfield Town Plan and Zoning Commission’s reliance upon state statutes applicable only to site plans, Section 8-3(i) and Section 8-3(m) of the General Statutes, cannot impact or affect the approved special permit.
Therefore, this appeal must be sustained, to the extent that it challenges the extension of the approved special permit voted by the Defendant, Fairfield Town Plan and Zoning Commission.
SUSTAINING APPEAL DOES NOT INVALIDATE SPECIAL PERMIT ISSUED TO FAIRFIELD COMMONS, LLC
Although the action of the Fairfield Town Plan and Zoning Commission, to the extent that it extended the approval of the special permit, is invalid, that does not mean that the special permit has been extinguished as a matter of law.
Section 8-3d of the General Statutes, which applies to variances and special permits, but does not apply to site plans, reads:
No variance, special permit or special exception granted ... shall be effective until a copy thereof ... containing a description of the premises to which it relates and specifying the nature of such variance, special permit or special exception ... is recorded in the land records of the town in which such premises are located. The town clerk shall index the same in the grantor’s index under the name of the then record owner ...
Special permits, like variances, attach to the property, and run with the land. Former Judge Robert A. Fuller has explained that special permits cannot be limited as to time, or personalized to any individual: "when a special permit is issued by the zoning commission ... it remains valid indefinitely, since the use allowed under it is a permitted use, subject to conditions in the regulations. The agency cannot put an expiration date on and require renewal of special permits ... because that automatically would turn a permitted use into an illegal use after the time period expired ... If the conditions of a special permit are violated, the remedy is a zoning enforcement proceeding since there is no statutory provision allowing revocation or expiration of special permits." Fuller, Robert A. Land Use Law and Practice, (fourth edition), Vol. 9B, Section 50.1, page 516.
Superior Court cases which have considered this issue have adhered to the rule outlined by Judge Fuller. Madore v. Haddam Zoning Board of Appeals, judicial district of Middlesex, Docket # CV-11-6005648 S (August 21, 2012, Handy, J.) ; Gozzo v. Simsbury Zoning Commission, judicial district of New Britain, Docket # CV-07-4015865 S (July 24, 2008, Cohn, J.) ; Shaw v. Westport Planning & Zoning Commission, judicial district of Fairfield at Bridgeport, Docket # CV-02-0395344 S (July 12, 2005, Owens, J.T.R.) .
A municipality is a creature of the state. Therefore, whether acting itself, or through a municipal land use body, it has no inherent powers of its own, and only possesses such rights and powers which have been expressly granted to it by the state. Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 326 (2009); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19 (1987); Connelly v. Bridgeport, 104 Conn. 238, 252 (1926). A municipality, as a specially chartered corporation, may only exercise those powers granted to it by the General Assembly. City Council v. Hall, 180 Conn. 243, 248 (1980).
As an administrative agency, a municipal planning and zoning commission can only exercise those powers which have been validly conferred upon it by the General Assembly. The commission cannot change the statutory provisions under which it acquires authority, unless the statute specifically grants it that authority, Finn v. Planning & Zoning Commission, 156 Conn. 540, 546 (1968). The question in all cases is not whether a state law prohibits a municipality from acting, but whether there is statutory authorization for the action. Avonside v. Zoning & Planning Commission, 153 Conn. 232, 236 (1965). Any delegation of authority by the General Assembly is narrowly construed. An enumeration of powers in a statute is uniformly held to forbid those things which are not enumerated. State ex rel Barnard v. Ambrogio, 162 Conn. 491, 498 (1972).
No provision of the General Statutes allows a municipal zoning commission to revoke, or to place a time limit upon, a valid special permit, which has become effective pursuant to Section 8-3d of the General Statutes.
Therefore, the April 10, 2018 action of the Fairfield Town Plan and Zoning Commission had no impact on the special pellnit issued to the Defendant, Fairfield Commons, LLC, assuming that the special permit was otherwise effective.
The only approval impacted by the action, based upon the provisions of Section 8-3(i) and Section 8-3(m) of the General Statutes, is the coastal area management (CAM) site plan.
CONCLUSION
The appeal of the Plaintiff, International Investors, is SUSTAINED, to the extent that it challenges the authority of the Fairfield Town Plan and Zoning Commission to extend the expiration date of the special permit until April 8, 2023.
In sustaining the appeal, the court does not find that the special permit issued to Fairfield Commons, LLC, has expired, or is otherwise invalid, as a matter of law.