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
...