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One Elmcroft Stamford, LLC v. Zoning Board of Appeals of City of Stamford

Court of Appeals of Connecticut

September 3, 2019

ONE ELMCROFT STAMFORD, LLC
v.
ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL.

          Argued February 13, 2019

         Procedural History

         Appeal from the decision by the named defendant granting the application of the defendant Pasquale Pisano for approval of the location of a used car dealer on certain real property, brought to the Superior Court in the judicial district of New Britain and transferred to the judicial district of Stamford-Norwalk, where the matter was tried to the court, Hon. Taggart D. Adams, judge trial referee; judgment denying the plaintiff's appeal, from which the plaintiff appealed to this court. Reversed; further proceedings.

          Jeffrey P. Nichols, with whom was John W. Knuff, for the appellant (plaintiff).

          James V. Minor, special corporation counsel, with whom was Kathryn Emmett, director of legal affairs, for the appellee (named defendant).

          Gerald M. Fox III, for the appellees (defendant Pas-quale Pisano et al.).

          Sheldon, Elgo and Lavery, Js. [*]

          OPINION

          LAVERY, J.

         The plaintiff, One Elmcroft Stamford, LLC, appeals from the judgment of the Superior Court denying its appeal from the decision of the defendant Zoning Board of Appeals of the City of Stamford (board), approving the application of the defendant Pasquale Pisano (defendant) to locate the defendant used car business, Pisano Brothers Automotive, Inc. (Pisano Brothers), at 86 Elmcroft Road in Stamford. On appeal, the plaintiff claims that the court improperly (1) determined that the defendant had standing to apply to the board for approval of the application, (2) upheld the board's decision, despite the board's failure to review the application in accordance with General Statutes § 14-55, [1] and (3) searched beyond the board's stated reason for approval of the application.[2] We disagree with the plaintiff's first claim but agree with the plaintiff's second and third claims. Accordingly, we reverse the judgment of the Superior Court.

         The following facts and procedural history are relevant. Pisano Brothers is the lessee of the 6500 square foot parcel located at 86 Elmcroft Road in Stamford (property), in a General Industrial (M-G) zone. The plaintiff owns abutting property at 126 Elmcroft Road.

         In June, 2016, the defendant, on behalf of Pisano Brothers, applied for a used car dealer license from the Department of Motor Vehicles, listing himself as vice president and his brother as president. Pursuant to General Statutes § 14-54, a license for ‘‘dealing in or repairing motor vehicles'' requires a ‘‘certificate of approval of the location'' (certificate of approval) from the appropriate local board. Accordingly, the defendant additionally applied to the board for its approval of a ‘‘used car dealer'' on the M-G zoned property (Pisano application).

         The board referred the Pisano application to various city agencies and boards. The record contains advisements from the Planning Board of the City of Stamford (planning board) and the Engineering Bureau of the City of Stamford (engineering bureau). In a letter to the board dated September 8, 2016, the planning board ‘‘unanimously recommended denial of [the Pisano application], '' opining ‘‘that the proposed application does not keep with the character of the neighborhood and . . . [is] not consistent with the 2015 Master Plan Category #9 (Urban Mixed-Use).'' The engineering bureau advised that it found the proposal ‘‘will not result in any adverse drainage impacts'' and, further, that approval of the Pisano application should be conditioned on the installation of a ‘‘[n]ew concrete curb and sidewalk . . . along the frontage of the property.''

         On September 14, 2016, the board held a public hearing on the Pisano application. The board posed several questions to the defendant and his attorney, Gerald M. Fox III. Two individuals spoke against the Pisano application. They were concerned about the inability to conceal the building and parking lot on the property with fencing, the lack of sidewalks, and the potential for a crowded parking lot. The plaintiff did not offer comment. The board, during its deliberations, noted that the defendant seemed amenable to complying with various conditions of approval that would make the property compatible with the local neighborhood. The board unanimously voted to approve the Pisano application. Subsequently, on September 29, 2016, the board issued a letter to the defendant, stating its approval and setting forth several conditions.

         Pursuant to General Statutes § 14-57 and the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183et seq., the plaintiff appealed to the Superior Court. The plaintiff advanced three claims: (1) the defendant was not a proper party and lacked standing to apply to the board for location approval, (2) the board did not comply with hearing notice requirements, and (3) the board failed to conduct the requisite suitability analysis, as prescribed in § 14-55. As to the first two claims, the court disagreed. As to the third claim, the court agreed with the plaintiff's argument that § 14-55 applied and further acknowledged that ‘‘the board's certificate of approval looks and reads like a variance.'' Upon its review of the transcript from the September 14, 2016 public hearing, however, the court concluded that the board, nonetheless, gave due consideration to the suitability of the proposed use. It, therefore, reasoned that the board's decision was akin to an approval under § 14-55.[3] Accordingly, the court, in its memorandum of decision dated December 13, 2017, denied the plaintiff's appeal. Subsequently, pursuant to General Statutes § 4-184, the plaintiff appealed to this court.[4] Additional facts and procedural history will be set forth as necessary.

         I

         We first address the plaintiff's claim that the court improperly concluded that the named applicant, the defendant, had standing to apply to the board for location approval and, accordingly, was a proper party. The plaintiff notes that Pisano Brothers, in its business capacity, sought a used car dealer's license from the Department of Motor Vehicles, but the certificate of approval application and the subsequent hearing notification listed the defendant as the applicant. Accordingly, the plaintiff contends that the board's approval of the Pisano application was improper because its decision was rendered in favor of a person rather than in the name of the proposed licensee. The plaintiff cited no authority in support of this proposition. We are not persuaded.

         ‘‘[T]he standard for determining whether a party has standing to apply in a zoning matter is less stringent [than the standard that applies to a determination of whether a party is aggrieved]. A party need have only a sufficient interest in the property to have standing to apply in zoning matters. . . . [I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest . . . .'' (Internal quotation marks omitted.) RYA Corp. v. Planning & Zoning Commission, 87 Conn.App. 658, 663, 867 A.2d 97 (2005). Here, the issue is not whether Pisano Brothers has standing but, instead, whether standing, in effect, was voided by virtue of a technical glitch in listing the defendant as the applicant.

         RYA Corp. v. Planning & Zoning Commission, supra, 87 Conn.App. 658, presented similar circumstances as in the present case. In that case, the applicable zoning regulations required that an applicant be a ‘‘record owner or developer . . . .'' (Emphasis omitted; internal quotation marks omitted.) Id., 669. Although the plaintiff subdivision applicant, The RYA Corporation (RYA), did not qualify as such, the plaintiff record owner, Myers Nursery, Inc. (Myers, Inc.), consented in writing to RYA filing the application. Id., 667-68. The defendant planning and zoning commission claimed that the trial court improperly concluded that Myers, Inc., had standing to appeal the planning and zoning commission's decision, arguing that RYA had not ‘‘established definitively by the terms of the consent form'' that it was acting under the authority of Myers, Inc. Id., 668.

         This court concluded that the property owner requirement set forth in the applicable zoning regulations was satisfied, stating: ‘‘As a matter of law, we are not persuaded that the trial court was required to read these documents as narrowly as do[es] the [planning and zoning commission]. Taking into account the totality of the relationship between Myers, Inc., and RYA, the court had the authority to conclude that the physical linkage between the application and the consent form gave Myers, Inc., a sufficient interest to have standing to contest the denial of the proposed subdivision. This conclusion is supported not only by the nature of the documentation itself but because, as noted previously, the court reasonably might have found that RYA was acting as Myers, Inc.'s agent in filing the subdivision application.'' Id.; see also Loew v. Falsey, 144 Conn. 67, 73-74, 127 A.2d 67 (1956) (fact that owner of corporation, E. M. Loew, applied for permit in his own name, rather than in name of his corporation, E. M. Loew, Inc., did not mislead anyone and there was no reason why permit could not have been granted under name provided, and, accordingly, no jurisdictional defect resulted simply by incorrectly using name of owner in permit application).

         Similarly, the record in the present case reveals that although Pisano Brothers was not the named applicant on the certificate of approval application, the totality of the circumstances sufficiently link the defendant to Pisano Brothers, such that no one was misled or misunderstood the nature of the application. The application for a used car dealer license from the Department of Motor Vehicles lists ‘‘Pisano Brothers Automotive Inc.'' as the name under which the business was to be conducted, with the defendant and his brother identified as officers of the company. The proposed improvement location survey identified ‘‘Pisano Brothers Automotive, Inc., '' as the prospective user. Additionally, at the outset of the public hearing, the defendant was introduced as one of the owners of Pisano Brothers, along with his brother. Accordingly, we conclude that the court did not err in concluding that the defendant, as a representative of Pisano Brothers, had standing to apply to the board for location approval.

         II

         The plaintiff claims that the court erred in upholding the board's decision, despite the board's failure to apply the standard set forth in § 14-55. Although the plaintiff did not offer comment or argument before the board during the public hearing, the plaintiff argued before the trial court that despite the fact that the then current edition of the General Statutes provided that § 14-55 had been repealed, in actuality, it had not been repealed. The plaintiff contended that had the board properly followed § 14-55, it would have considered the suitability factors set forth therein, namely, ‘‘due consideration to [the proposed use's] location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.'' The plaintiff, therefore, contended that the board not only failed to issue any findings as to these suitability factors, but, further, it improperly treated the Pisano application as one for a variance. The court concluded that the record reflected that the board gave due consideration to the requisite suitability factors. The court, therefore, denied the plaintiff's appeal.

         Before this court, the plaintiff maintains that, despite the fact that published editions of the General Statutes have stated that § 14-55 has been repealed, in actuality, it has not been repealed. The board agrees that the statute has not been repealed but argues, nonetheless, that it substantially complied with the statute's requirements in granting the Pisano application. The defendant and Pisano Brothers argue that § 14-55 was repealed but that, even if it was not repealed, the board substantially complied with the statute. We conclude that (1) § 14-55 had not been repealed at the time of the board's action on the Pisano application, and (2) the board mistakenly treated the Pisano application ...


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