Opinion
No. CV-03-0483300 S
December 14, 2004
MEMORANDUM OF DECISION
I. FACTS:
On or about September 23, 2003, the defendant West Haven Planning and Zoning Commission ("Commission") approved a site plan application filed by defendant Stop Shop Supermarket Company, Inc. ("Stop Shop") for construction of a Stop Shop Supermarket as well as other commercial retail activity on properties known as 436, 470 and 498 Elm Street located in a Commercial Planned Development ("CPD") zone. Return of Record ("ROR") 17. A modification of the site plan was approved April 13, 2004. Deft. Exh. B. Plaintiff Trixie Norton, LLC, which owns adjoining property known as 491 Main Street, appealed the approval of the site plan as modified.
1. Description of the Project:
The proposed project is located at 436, 470 and 498 Elm Street in the City of West Haven. The project consisted of a 71,743 square foot supermarket plus 19,000 square feet of attached retail space and 455 parking spaces. The plan also combined neighboring properties and required that all existing structures and improvements be removed. In addition, the site plan required the abandonment of a portion of Candee Avenue which divided the parcels involved. Said abandonment was to allow construction of the supermarket over the portion of Candee Avenue which was abandoned.
On or about February 25, 2003, the defendant Commission had approved a re-zone of said property to Commercial Planned Development District. In addition, the Commission approved zoning text amendments dealing with the project. The above approvals were submitted and approved in anticipation of the site plan now on appeal. In addition, on September 22, 2003 the West Haven City Council abandoned portions of the street Candee Avenue to accommodate said development plan. ROR-14, pp. 1-2. Candee Avenue is an approved town road, which completely bifurcates the subject property. At the line of the application, Candee Avenue was actively in use. However, property owners on Candee Avenue were not deprived of access by the discontinuance, either over the remaining portion of Candee Avenue or via its intersection with Center Street. Site Plan, Def. Exh. A.
2. The Appeal:
Plaintiff appealed from the approval of the site plan application on October 24, 2003. Although the original and amended complaint cite a variety of reasons for the appeal, plaintiff has limited its appeal by the issues raised in its brief and again at oral argument to the alleged illegality of approving a site plan which allows construction of a building over an abandoned street.
II. AGGRIEVEMIENT
The question of aggrievement is essentially one of standing. Trimar Equities, LLC v. Planning and Zoning Commission, 66 Conn.App. 631. Connecticut General Statutes § 8-8(a)(1) defines an "aggrieved person" as "any person owning land that abuts or is within the radius of 100 feet of any portion of the land involved in the decision of the Board." Proof of aggrievement is "an essential pre-requisite to the court's jurisdiction of the subject matter of the appeal." Id. at 635.
After hearing, the Court finds that plaintiff owns the property known as 491 Main Street, West Haven, which abuts a portion of the subject property. Deed, Plt. Exh. A and Amended Site Plan, Def. Exh. A. Accordingly, plaintiff is an "aggrieved person" and has standing to appeal.
The defendants argue that although plaintiff's property adjoins the site, since plaintiff's property does not abut Candee Avenue, plaintiff lacks standing to raise issues associated with the discontinuance of Candee Avenue in this appeal. While it is true that plaintiff has no standing to appeal the action of the City Council discontinuing that portion of Candee Avenue in this or any other forum, the plaintiff may still raise any issues affecting the legality of the site plan in this appeal.
III. STANDARD OF REVIEW FOR SITE PLAN APPROVAL
In reviewing a site plan application, a commission acts in an administrative capacity. On appeal of a commission's decision on a site plan application, a court may only grant relief, "where the local zoning authority has acted arbitrarily or illegally and thus abused the discretion vested in it." McCann v. Town Plan and Zoning Commission of Bloomfield, 161 Conn. 65, 71 (1971).
In challenging the Commission's approval of the application, plaintiff bears the burden of proving that the Commission "has not acted fairly, with proper motives and upon valid reasons." Rocchi v. Zoning Board of Appeals of Glastonbury, 157 Conn. 106, 110 (1968).
In determining the merits of an appeal of a site plan approval, the court must be mindful of the role of the commission and may not substitute its judgment for that of the commission. The commission acts pursuant to Connecticut General Statutes § 8-3(g) which requires "A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland/wetlands regulations." Therefore, our Supreme Court has held that "If the application conforms to the zoning regulations, the board cannot deny the application for subjective reasons that bear no relationship to the zoning regulations." RR Pool Patio, Inc. v. Zoning Board of Appeals of Ridgefield, 257 Conn. 456, 469 (2001).
IV. DISCUSSION
As part of the proposal, the applicant requested the City of West Haven that a portion of Candee Avenue bifurcating the proposed development be abandoned. The purpose of the abandonment was to allow the street itself to become part of the development and to allow the applicant to construct a building over a portion of what had previously been Candee Avenue.
It is undisputed that a municipality has the right to abandon a road or highway. Here, the City of West Haven determined that it was in the City's best interest to extinguish one end of Candee Avenue as a public street so that this planned development could go forward. Plaintiff claims that Connecticut General Statutes § 13a-55 controls certain rights for the abandonment of streets, making this proposed development illegal. Connecticut General Statutes § 13a-55 provides:
Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.
Thus, Connecticut General Statutes § 13a-55 specifically and intentionally preserves the private right-of-way of adjoining owners over the abandoned street or highway.
The Appellate Court in Luf v. Southbury, 188 Conn. 335 (1982), held:
The effect of C.G.S. 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access; Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 356; Peck v. Smith, 1 Conn. 146; after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway. Their easement of necessity includes the right to travel over and to improve the existing roadbed of East Hill Road. Holt v. Wissinger, 145 Conn. 106, 111 (1958); Lake Garda Co. v. D'Arche, 135 Conn. 449, 454-55 (1949)." Luf, at pp. 342-45.
Plaintiff next argues that since Connecticut General Statutes § 13a-55 preserves a private right-of-way for abutting owners over the abandoned portion of Candee Avenue, the site plan is illegal because it violates the setback requirements from a right-of-way by allowing construction over a right-of-way.
The West Haven Zoning Regulations provide for a required minimum setback from a street of at least 25 yards. If the private right-of-way over the abandoned portion of Candee Avenue is still deemed a "street" under the zoning regulations, construction in the right-of-way would be prohibited. A street is defined in Section 1-3.2 as follows:
STREET: A public way or a way opened to the public use or other right-of-way giving access to a lot, but not excluding an alley for service access only. "Street" shall be deemed to include the entire width of the right-of-way.
Plaintiff claims that the right-of-way conferred by Connecticut General Statutes § 13a-55 over the abandoned portion of Candee Avenue falls within the above definition of a "Street," regardless of whether the abutting owners have alternative access to their property, citing Mackie v. Hill, CV-98-0078427(S), (June 15, 2003), where the court held the statute conferred a private right-of-way over an abandoned street regardless of alternative access. The problem with this argument is that not all private easements or right-of-ways come within the definition of "Street" under the Regulations. The regulation cited above is in clear contrast to Connecticut General Statutes § 13a-55 in that it specifically limits its applicability to a right-of-way "giving access to a lot."
In other words, whereas owners abutting Candee Avenue may have certain rights under Connecticut General Statutes § 13a-55 should they seek to enforce them, their private easement is not a "street" for zoning purposes in West Haven, and thus no setback from the abandoned roadway is required in the site plan.
Accordingly, plaintiff has failed to establish its burden of showing that the Commission's decision was unreasonable, illegal or arbitrary or that the site plan violated the applicable zoning regulations, and the appeal is dismissed.
Sequino, J.