Savin Gasoline Properties, LLC v. City Council of City of City of Norwich

SAVIN GASOLINE PROPERTIES, LLC et al. v. CITY COUNCIL OF the CITY OF NORWICH et al.

No. KNLCV176031567S

Superior Court of Connecticut, Judicial District of New London, New London

July 1, 2019

UNPUBLISHED OPINION

OPINION

Cosgrove, JTR

On September 18, 2017 the defendant, the City Council of the City of Norwich (hereinafter City) amended section 6.3 of the Norwich Zoning Regulations, which section is entitled "Motor Vehicle Sales and Repair."^[1] The substance of the amendment was twofold; first it eliminated the need for a public hearing on an application for a "Certificate of Approval" under section 6.3.2 and second, it eliminated language in 6.3.1 of the regulations which required that there be a 1, 000-foot separation between any "new gasoline filling stations" and any lot used or proposed to be used as a gasoline filling station.

Each of the three plaintiffs own gasoline filling stations in a General Commercial (GC) Zone within the City of Norwich. The plaintiff, Savin Gasoline Properties, LLC (hereinafter "plaintiff") is the owner of a gasoline filling station, convenience store and car wash located at 489 New London Turnpike in Norwich, Connecticut. The Savin Gasoline Properties II, LLC is the owner of a gasoline station and convenience store operated at 162 West Town Street in Norwich, Connecticut. The substitute plaintiff, Petroleum Marketing Investment Group, LLC (PMIG) owns real property located at 565 West Main Street, Norwich, Connecticut and operates a gasoline station and convenience store at that site. Each of these properties is located in a GC Zoning District under the Norwich Zoning Regulations. Gasoline stations and convenience stores are uses permitted by special permit in the GC zone. This appeal challenges the elimination of the 1, 000-foot spacing requirement between existing and proposed gasoline filling stations as an improper exercise of the City’s zoning power.

The defendant Cumberland Farms, Inc. (hereinafter "Cumberland"), owns property at the intersection of New London Turnpike and West Main Street in Norwich Connecticut. The property is located in the GC zone. Cumberland filed the application requesting the amendment of the zoning regulations. It plans to improve its property with a gasoline filling station and convenience store as would be allowed under the zoning regulations as amended. The property currently is within 1, 000 feet of a lot currently used as a gasoline filling station.

The first issue that the court must deal with is the issue of aggrievement of the plaintiffs. The plaintiffs allege they are aggrieved classically and statutorily. They allege that they each own and operate a gasoline/convenience store on real property located in a GC zone. They allege that the amendment of the language of Section 6.3 of the zoning regulations will vastly increase the number of potential sites for gasoline/convenience stores in the GC zone and therefore will increase the traffic turning movements and compromise traffic safety. This compromise of traffic safety will injuriously effect their respective businesses. They further allege aggrievement because their property rights will be injured in that access to their properties will become "more difficult, dangerous and cumbersome." They further allege their use, enjoyment and value of their properties was "impaired, depreciated and diminished by the action of the City approving this amendment of the zoning regulations."

At the hearing on March 13, 2019, the plaintiffs offered evidence of their aggrievement. Mr. John MacNeil is the Director of Facilities Management for Alden Associates which is the manager of the Savin plaintiffs’ properties. A deed was introduced showing that Savin Gasoline Properties, LLC acquired the 568 West Main Street property on September 1 2000. A deed was introduced showing that Savin Gasoline Properties II, LLC acquired the West Town Street property on June 25, 2004. Mr. MacNeil, although not a real estate appraiser, did not claim a diminution of value of either parcel. He did express concern about "increased turning movements" would be caused by the allowance of additional gasoline stations within 1, 000 feet of their respective properties. He identified that there were other preexisting nonconforming uses- gasoline stations- within 1 000 feet of the West Town Street property.

The plaintiff then called Steve Salveggio on behalf of the substitute plaintiff PMIG. PMIG acquired the 565 West Main Street property from Hendel’s 565 West Main Street, LLC in 2018. The witness is the Director of Operations for PMIG. He testified the property was located in the GC zone and his company operates a gasoline station and convenience store on the site. He has traffic safety concerns because of the amendment of the zoning regulations. He does not claim a diminution of the value to the parcel. There is another gas station located within 1, 000 feet of the property so that it was a nonconforming use and now, because of the amendment, has become a conforming use.

At the aggrievement hearing, the plaintiffs also offered the testimony of David Spear, a registered engineer, and the owner of DLS Traffic Engineering, LLC. He expressed his expert opinion that the amendment to the zoning regulations will adversely impact access management and increase traffic conflict areas. The defendants offered the testimony of Maureen Cheblek, a traffic consulting engineer who reached a contrary conclusion as to the traffic impacts of the zoning regulation amendment.

I

"It is well settled that [p]leading and proof of aggrievement are prerequisites to a court’s jurisdiction over the subject matter of an administrative appeal ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239. "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).

A Classical Aggrievement

With regard to classical aggrievement, "[t]he fundamental test by which the status of aggrievement ... is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991).

The plaintiffs have failed to prove facts satisfying the elements of classical aggrievement. Although they have established that they own property located within the zoning district that is affected by the City’s decision to eliminate the 1, 000-foot separation distance between gasoline filling stations in the commercial zones, they have presented only speculative concerns regarding the potential adverse impacts that could arise if additional properties located within 1, 000 feet from the plaintiffs’ properties are developed as gasoline filling stations. "Although the adverse effect on the plaintiffs’ legally protected interest need not be certain to establish aggrievement, it nevertheless is well settled that ... speculative concern ... even if true [does] not rise to the level of aggrievement. Allegations and proof of mere generalizations and fears are not enough to establish aggrievement." (Internal quotation marks omitted.) Mayer v. Historic District Commission, 325 Conn. 765, 785, 160 A.3d 333 (2017); see also Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 577, 79 A.3d 115 (plaintiff’s aggrievement claim based on mere proposal, which had not been approved, was speculative and did not support finding of classical aggrievement), cert. denied, 310 Conn. 964, 83 A.3d 346 (2013). Because the plaintiffs have failed to show more than speculative concerns regarding the potential impacts of the amendment on their property interests, which may arise from future zoning application approvals and not as a direct result of the decision that is the subject of this appeal, they have not met their evidentiary burden of showing that they are classically aggrieved. Accordingly, the court must consider whether the plaintiffs have satisfied the elements of statutory aggrievement pursuant to Connecticut General Statutes (CGS) § 8-8.

B. Statutory Aggrievement

Statutory aggrievement stems from an analysis of the language of CGS § 8-8. It provides "(a) As used in this section:(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes ... any person 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 board."

The cases of Lucas v. Zoning Commission, 130 Conn.App. 587 (2011) and Cole v. Planning & Zoning Commission, 30 Conn.App. 511 (1993) establish that a party is statutorily aggrieved when they are an owner of property within a zone affected by a zoning amendment. Here the plaintiffs each own property within the GC zone in which gasoline filling stations are allowed by special permit.

The defendants argue...