Opinion
No. AAN-CV07-4008767S
October 8, 2009
MEMORANDUM OF DECISION
FACTS
The Defendant, Fountain Lake, LLC, is the owner of property known as Lot 6, Fountain Lake Commerce Park, located in the City of Ansonia. The parcel, which contains 44.8 acres, is situated entirely within a Commercial Park (CP) District, (ROR #2).
The real estate is unimproved, and is located south of Fountain Lake Road at its intersection with Birmingham Boulevard. It is west of Route 8, and is characterized as woody and hilly, with numerous rock outcroppings and steep slopes (ROR 16). Challenges posed by the topography render only eleven to thirteen acres of the site suitable for development (ROR 3, p. 5).
On June 18, 2007, Fountain Lake, LLC filed two related applications with the Ansonia Planning and Zoning Commission (ROR 2). Site plan and special permit approvals were sought, preliminary to the construction of a bio-research facility and laboratory, and the processing of rock which would be excavated during the construction. The rock would be crushed on the site.
Site plan approval was requested for a proposed multi-story, 30,000 square foot office building. Access to the facility would be over a 1,100 foot access road, which would be deeded to the City of Ansonia when completed (ROR 2).
The contemplated use of the property is a permitted use in a CP Zone. The proposed site plan compiles with the parking and landscaping standards contained in the zoning regulations (ROR 2; ROR 16, p. 2).
In addition to the proposed site plan, Fountain Lake, LLC sought a special permit, to allow the crushing of rock on site, as part of the construction process.
Prior to submitting the site plan and special permit applications, approval of the Ansonia Inland Wetlands Commission was sought (ROR 22). Inland Wetlands approval was obtained on June 7, 2007.
The Ansonia Planning and Zoning Commission held a public hearing concerning both the site plan and the special permit applications on July 6, 2007 (ROR 3). After the site plan and special permit applications were presented, the commission received testimony and written correspondence (ROR 26; ROR 3, p. 37) from a representative of George J. Shuster, an abutting property owner.
The Shuster property consists of 11.686 acres, and abuts the Fountain Lake, LLC parcel. It is situated east of Route 8, and has 400 feet of frontage along Great Hill Road (ROR 3, p. 48). Attorney George Mendillo, representing the property owner, declared that the commission "should approve Fountain Lake, LLC's site plan . . ."
However, Attorney Mendillo argued that the approval should be conditioned upon Fountain Lake, LLC agreeing to provide access to the Shuster property over its proposed access road (ROR 26, p. 2). He claimed that access to the Shuster property from Great Hill Road was not feasible (ROR 3, p. 39-41), and that without access to Birmingham Road through the Fountain Lake, LLC parcel, the Shuster property would be effectively landlocked.
Prior to voting on the Fountain Lake, LLC site plan approval, the commission received a communication from the Ansonia Corporation Counsel, addressing the issues raised by Attorney Mendillo on behalf of his client, George J. Shuster (ROR, 1). The letter is referenced in the commission's resolution.
On August 27, 2007, the Ansonia Planning and Zoning Commission voted to approve Fountain Lake, LLC's site plan and special permit applications. The commission announced findings in support of its decision (ROR 1, p. 5).
1. The proposed development with conditions, will not exert a detrimental effect on the orderly development of the district in which it is located.
2. The application complies with all applicable requirements for development as stated in the zoning regulations.
Notice of the commission's decision was published in the New Haven Register on September 5, 2007. (ROR 18).
This appeal from the granting of site plan approval was begun by George J. Shuster, returnable on October 16, 2007. George J. Shuster died on August 30, 2008. The current Plaintiff, Jeanne F. Shuster, acting as Executrix of the Estate of George J. Shuster, was substituted as the Plaintiff on January 30, 2009.
No appeal was taken concerning the special permit approval.
AGGRIEVEMENT
This action was commenced by George J. Shuster, who owned land abutting the Fountain Lake, LLC property which was the subject of the site plan and special permit applications. Following his death, Jeanne F. Shuster, in her capacity as Executrix of his estate, was substituted as the party Plaintiff.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact. Hughes v. Town Planning and Zoning Commission, 156 Conn. 505, 508 (1968).
In order to sustain a claim of aggrievement, an appellant's interest in the property must be sustained throughout the course of an appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
Two broad categories of aggrievement are recognized: 1) statutory aggrievement, and 2) classical aggrievement.
Statutory aggrievement exists by legislative fiat, rather than by judicial analysis of the facts of a particular case. One claiming statutory aggrievement must show that a particular statute grants to that Plaintiff standing to pursue an appeal, without the necessity of demonstrating actual injury based on the particular facts at hand. Pond View, LLC v. Planning and Zoning Commission, 288 Conn. 143, 156 (2998); Andross v. West Hartford, 285 Conn. 309, 322 (2998); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-87 (2003).
Section 8-8(a)(1) of the General Statutes defines "aggrieved person" to mean one ". . . owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision (of the commission) . . ."
Classical aggrievement, on the other hand, requires the 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 involved. Primerica v. Planning and Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
The late George J. Shuster, who owned the eleven-acre tract which abuts the Fountain Lake, LLC property, was statutorily aggrieved when this appeal was begun. After his death, his wife, Jeanne F. Shuster, was substituted as the Plaintiff and the appeal continued.
Connecticut appellate courts have not addressed whether an Executrix is an "owner" of property within the meaning of § 8-8(a)(l) of the General Statutes. However, the word "owner" has no fixed meaning, but must be interpreted in its context, and in accordance with the circumstances in which it is used. Smith v. Planning and Zoning Board, 203 Conn. 317, 322 (1987).
In Smith, the court determined that the holder of a life estate was statutorily aggrieved, and that the life estate satisfied the ownership requirement of § 8-8(a)(1) of the General Statutes. The court declared that the life estate gave to the plaintiff the right of possession, and the right to use the land in a manner consistent with a fee interest. Smith v. Planning Zoning Board, supra, 323.
Two Superior Court decisions have determined that the trustee, operating pursuant to an inter vivos trust, is a statutorily aggrieved party pursuant to § 8-8(a)(1) C.G.S. (See Swiconek v. Glastonbury Zoning Board of Appeals, Judicial District of Hartford at Hartford, Docket No. CV-08-4038134S (March 20, 2009, Langenbach, J.T.R.) ( 47 Conn. L. Rptr. 492) and Field Point Park Association v. Planning Zoning Commission, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV-03-0196430S (April 18, 2005, Wilson, J.) ( 39 Conn. L. Rptr. 179).
As Executrix of the estate of her late husband, Jeanne F. Shuster is acting in a fiduciary capacity. Section 45a-321(a) of the General Statutes, gives to a fiduciary certain powers regarding a decedent's real and personal property. The statute reads:
(a) The fiduciary of a decedent's estate shall, during settlement, have the possession, care and control of the decedent's real property and all the products and income of such real property during such time shall vest in the fiduciary as personal property, unless real property has been specifically devised . . . but the court may order surrender of the possession and control of such real property to the heirs or devisees, or may, during settlement, order distribution of such real property.
The powers and prerogatives of an Executrix, acting under the auspices of the Probate court, are not unlike those of a trustee of a revocable trust. As the party in possession and control of the 11.686-acre parcel, the plaintiff, Jeanne F. Shuster, Executrix of the Estate of George J. Shuster, is statutorily aggrieved by the decision of the Ansonia Planning and Zoning Commission, and may maintain this appeal in her fiduciary capacity.
Because the Plaintiff had demonstrated statutory aggrievement, it is unnecessary to consider whether she would also be classically aggrieved.
STANDARD OF REVIEW
When considering a site plan application, a planning and zoning commission sits in an administrative capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29 (1977). It has no independent discretion beyond determining whether a plan, as presented, complies with all of the applicable regulations. Kosinski v. Lawlor, 177 Conn. 420, 426 (1979).
The commission's powers are specifically limited, pursuant to § 8-3(g) of the General Statutes. If a plan, as submitted, conforms to the applicable regulations, the commission has no discretion but to approve it. R.K. Development Corporation v. Norwalk, 156 Conn. 369, 375-76 (1968); Langbein v. Planning Board, 145 Conn. 647, 679 (1958). This is consistent with the notion that every property owner is entitled to rely upon the local zoning regulations, and to use his property accordingly. Helbig v. Zoning Commission, 185 Conn. 294, 308 (1981).
Section 8-3(g), C.G.S. — ". . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations . . ."
Because of the mandates of § 8-3(g), C.G.S., the review of a site plan application by a zoning commission has been described as ministerial. Allied Plywood, Inc. v. Planning Zoning Commission, 2 Conn.App. 506, 512 (1984).
General provisions cannot serve as the basis for denying a site plan application. TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 532 (1990). The decision must be controlled by known and fixed standards applying to all cases in a like nature. Sonn v. Planning Zoning Commission, 172 Conn. 156, 173 (1976).
THE PROPOSED SITE PLAN COMPLIES WITH ALL OF THE APPLICABLE ANSONIA ZONING REGULATIONS
The Defendant Planning and Zoning Commission of the City of Ansonia found that the Fountain Lake, LLC proposal complies with all applicable requirements for development, as set forth in the zoning regulations. The Plaintiff has failed to identify a single requirement of the zoning regulations, which undercuts this finding.
The use of the proposed two-story 30,000 square foot building as an office facility, is a permitted use in a Commercial Park (CP) District. Furthermore, the proposed access road, which will be deeded to the City of Ansonia, satisfies all development standard criteria.
The Plaintiff highlights language in Section 510.5.3 of the Ansonia Zoning Regulations, which she claims requires denial of the site plan application. That section states that a site plan ". . . will be in harmony with the surrounding area and with protection of nearby residential areas."
The Plaintiff argues that the failure of the commission to provide road access to the Shuster property through the Fountain Lake, LLC property as a condition of site plan approval, requires rejection of the proposed site plan. This claim is wholly without merit.
No provision of the subdivision or zoning regulations requires a property owner to provide access over his property, to an abutting parcel. Fountain Lake, LLC cannot be required, as a condition of approval of a conforming site plan, to provide, at its expense, access via a road to the Shuster property.
The Plaintiff claims that her property is "landlocked," and therefore is entitled to an easement of necessity over the Fountain Lake, LLC property. This claim is equally unavailing.
A review of the record demonstrates that the Shuster property is not "landlocked," but enjoys 400 feet of road frontage along Great Hill Road, and may be accessed through Friars Drive (ROR B; ROR G; ROR 3, p. 48). Although a portion of the property lying within a particular commercial zone might arguably be "landlocked," the entire Shuster property is not.
The Plaintiff may have difficulty accessing portions of the Shuster property. However, the planning and zoning commission is not the proper forum to contest issues involving title to, or interests in land. Any claim which the Plaintiff, as Administratrix of her late husband's estate may have concerning the property owned by Fountain Lake, LLC, may only be established by bringing an action to quiet title.
Section 47-31, C.G.S.
Nor is the Plaintiff assisted by her claim that Fountain Lake, LLC must file a resubdivision proposal, along with the site plan application. No provision in the Ansonia Zoning Regulations prohibits multiple buildings on one parcel of commercial property.
Since the Fountain Lake, LLC parcel exists as a parcel within an approved subdivision, and no request was made to further divide the property, a subdivision application is not a prerequisite to a site plan application.
PROVISIONS OF THE ANSONIA MASTER PLAN OF 2002 ARE ADVISORY, AND DO NOT PROVIDE A BASIS FOR CHALLENGING THE SITE PLAN APPLICATION
A community's master plan, or plan of conservation and development, is prepared by a planning and zoning commission pursuant to § 8-23 of the General Statutes. Ansonia's 2002 master plan provides (Ex. D. p. 31):
Section 8-23, C.G.S. — "The commission shall prepare, adopt and amend a plan of conservation and development for the municipality . . ."
The City of Ansonia should consider focusing its primary economic development efforts in three areas:
Enhancing the Main Street commercial areas for the needs of the Ansonia resident;
Diversifying the local economic base, and
Redirecting and maximizing the land in commercial and industrial parks.
The Plaintiff claims that the approval of the Fountain Lake, LLC site plan prevents convenient access to the Shuster property, and therefore fails to maximize the use of land in commercial and industrial parks, as suggested in the master plan.
Although the plan of conservation and development is controlling as to municipal improvements; Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 474-75 (1982); the master plan is merely advisory in other cases. Sheridan v. Planning Board, 159 Conn. 1, 9 (1969).
Permitting the plan of conservation and development to control zoning decisions has been discouraged, because it would restrain a commission's flexibility in the control of land use and development. Fuller, Robert A. " Land Use Law and Practice" (second edition) § 4.4 p. 33 (1999).
In Raybestos-Manhattan, supra, the question involved the authority of a planning and zoning commission to disapprove a proposed subdivision, which did not provide for the extension of a road (Linderman Drive) as shown on the town's master plan. In finding that the commission had authority to disapprove the proposed subdivision, the court held that the master plan was binding as to municipal improvements, and that a failure to extend the road would also result in a violation of the subdivision regulations. Raybestos-Manhattan, Inc. v. Planning Zoning Commission, supra, 475.
Here, no subdivision plan was before the commission, and the proposed site plan fully complied with all applicable municipal regulations. The Ansonia Plan of conservation and Development cannot provide any basis for denying Fountain Lake, LLC's site plan proposal.
CONCLUSION
The appeal of the Plaintiff, Jeanne F. Shuster, Executrix of the Estate of George J. Shuster, is DISMISSED.