One Elmcroft Stamford, LLC v. Zoning Board of Appeals ( 2022 )

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ONE ELMCROFT STAMFORD, LLC v. ZONING BOARD OF APPEALS—
CONCURRENCE AND DISSENT
LAVERY, J., concurring in part and dissenting in part.
I agree that the judgment of the trial court should be
reversed in part and that the case should be remanded
to the court with direction to remand the case to the
defendant Zoning Board of Appeals of the City of Stam-
ford (board) for a new hearing. Specifically, I agree that
the board (1) did not lack subject matter jurisdiction
to hear the application, (2) did not violate the right of the
plaintiff, One Elmcroft Stamford, LLC, to fundamental
fairness with its prehearing notice, (3) improperly
treated the application for a certificate of approval of
location (Pisano application) filed by the defendant
Pisano Brothers Automotive, Inc. (Pisano Brothers),1 as
one for a variance, and (4) operated under the mistaken
belief that a municipal zoning board lacks the authority
to deny a location approval application when the pro-
posed use is permitted in the zone in question. Addition-
ally, I agree with the majority’s conclusion that it ‘‘con-
cur[s] with, and [is] bound by,’’ this court’s ‘‘settled
determination’’ in One Elmcroft Stamford, LLC v. Zon-
ing Board of Appeals, 192 Conn. App. 275, 293–97, 217
A.3d 1015 (2019), rev’d, 337 Conn. 806, 256 A.3d 151(2021) (Elmcroft I), that the trial court erred by search-
ing beyond the board’s stated reason for approving the
Pisano application.2 I respectfully disagree, however,
with the majority’s conclusion that the board did not
err by failing to distinguish a prior denial of a location
approval application to operate a similar business on the
property. Additionally, I believe that we must address
the board’s imposition of conditions on the certificate
of approval when it erroneously reviewed the Pisano
application under the variance standard. I, therefore,
concur in part and respectfully dissent in part.
I
First, I believe that the board erred by failing to distin-
guish the present case from the decision in East Coast
Towing, Ltd. v. Zoning Board, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-10-
6003028-S (March 2, 2011) (51 Conn. L. Rptr. 572) (East
Coast Towing), which involved the same property. On
remand, if the board decides to issue a certificate of
approval of location for the property, I strongly believe
that it must articulate on the record why it is departing
from that decision.
To reiterate, in East Coast Towing, an applicant pro-
posed in 2009 to use the property in the present case
as a base of operations for its towing business (East
Coast Towing application). Id., 572–73. After a public
hearing, the Zoning Board of the City of Stamford (agency)
declined to issue a certificate of approval of location.3
Id., 573. In reaching its decision, the agency applied the
suitability standards in General Statutes (Rev. to 2003)
§ 14-55.4 Id., 574.
The plaintiff applicant appealed to the Superior Court
and argued in relevant part that § 14-55 had been
repealed and that the agency was not permitted to con-
sider the standards set forth in that statute when
reviewing its application. Id., 573–74. The plaintiff fur-
ther argued that the agency was required to approve
the application once it determined that the proposed
use was one permitted in the M-G general industrial
zone. Id., 574. The court concluded that § 14-55 had not
been repealed and dismissed the appeal after conclud-
ing that there was substantial evidence to support the
reasons stated by the agency for its denial of the applica-
tion. Id., 577–78.
The plaintiff in the present case maintains that the
board is bound by the agency’s decision on the East
Coast Towing application and that it should have articu-
lated why it departed from the prior denial when it
granted the Pisano application. As part of the legal
standard that the plaintiff invites this court to adopt, it
argues that, on remand, the board ‘‘must either follow
or expressly distinguish’’ the decision in East Coast
Towing. Two cases from our Supreme Court support
the plaintiff’s position. First, Hoffman v. Kelly, 138
Conn. 614, 88 A.2d 382 (1952), involved an appeal from
the denial by the Liquor Control Commission (commis-
sion) of the plaintiff’s application for a druggist liquor
permit. The commission found that the property was
unsuitable because, ‘‘having considered the number of
like outlets in the neighborhood, [the commission]
found that the granting of a permit in this locality would
have been detrimental to public interest, and because
the commission was satisfied that there had been no
change in the neighborhood since [its] prior denials.’’
Id. The plaintiff appealed to the trial court, and, after
hearing additional evidence and finding facts, the court
sustained the appeal and ordered the commission to
issue a permit to the plaintiff. See id.On appeal to our Supreme Court, the commission
argued ‘‘that its denial of the permit [was] justified under
the principle of law which ordinarily renders every
administrative agency impotent to reverse itself unless
(1) a change of conditions has occurred since its prior
decision or (2) other considerations materially affecting
the merits of the subject matter have intervened and
no vested rights have arisen.’’ Id., 616–17. The court
concluded that the trial court impermissibly found that
there had been a change of conditions by finding its
own facts and reaching its own conclusion, rather than
determining, on the basis of the facts found by the
commission, whether the commission’s conclusion was
unreasonable or illogical. See id., 617. The court noted
that, to support a denial of the permit on the ground
that the commission was bound by its earlier decision,
the commission needed to make findings that the condi-
tions in the neighborhood had not changed and that
there were no new considerations materially affecting
the subject matter. See id. Because the commission did
not make such findings, the reasons it supplied did not
support its denial of the permit on the ground that it
was not free to reverse its prior decision. Id. The court
stated that it is for the commission to say ‘‘whether
new considerations have arisen, what they are and
whether they so materially change the aspect of the
case that they will justify a change of decision.’’ Id.,
618. Our Supreme Court remanded the case to the trial
court with direction to remand the case to the commis-
sion ‘‘to be proceeded with in accordance with law.’’ Id.
Second, Mason v. Board of Zoning Appeals, 143
Conn. 634, 124 A.2d 920 (1956), involved an appeal from
the refusal by the Board of Zoning Appeals of the City
of Bridgeport (board of zoning appeals) to issue a certif-
icate approving the plaintiff’s property ‘‘as a suitable
location for carrying on the business of repairing motor
vehicles.’’ Id., 635. The board of zoning appeals pre-
viously had issued to the plaintiff’s brother a certificate
approving the same property as a suitable location for
motor vehicle repairs. Id. Five years later, the brother
transferred title to the property and his interest in the
business to the plaintiff. Id., 635–36. The plaintiff sub-
mitted an application to the board of zoning appeals
for a certificate of approval. Id., 636. A public hearing
was held on the plaintiff’s application at which neigh-
bors complained about the hours of operation of the
brother’s business, along with noise and fumes caused
by the car repairs. Id. The board of zoning appeals also
received from the Bridgeport Fire Department a report
detailing hazards that existed on the premises. Id. At the
conclusion of the hearing, the board of zoning appeals
denied the plaintiff’s application without stating in the
record its reason for doing so. Id.
On appeal to our Supreme Court, the plaintiff claimed
that the board of zoning appeals acted arbitrarily, ille-
gally, and in abuse of its discretion in issuing a certifi-
cate of approval to his brother and then reversing its
ruling when it declined to issue a certificate to him,
even though no change of circumstances had occurred
since it first approved the location. Id. Our Supreme
Court, citing Hoffman, stated: ‘‘[A]fter an administra-
tive agency has made a decision relating to the use of
real property, it is ordinarily powerless to reverse itself,
although it may do so if a change in circumstances has
occurred since its prior decision, or other considera-
tions materially affecting the merits of the subject mat-
ter have intervened and no vested rights have arisen.’’
Id., 639. The court concluded that, because there was
nothing in the record to show a change of circumstances
since the prior decision of the board of zoning appeals,
that entity acted illegally in reversing itself. See id.
In the present case, the defendant and Pisano Broth-
ers argue that the board should not be bound by the
agency’s 2009 decision on the East Coast Towing appli-
cation because, among other things, the decision was
made by a different administrative agency that is a
separate and independent branch of Stamford’s land use
department. The majority agrees with this argument.
As the majority notes, in 2009, when the hearing on
the East Coast Towing application took place, General
Statutes (Rev. to 2009) § 14-54 delegated to the agency
the authority to review location approval applications
and to issue certificates of approval of location. In 2016,
shortly before the hearing on the Pisano application,
the legislature amended § 14-54, which now delegates
to the board the authority to review these applications
and issue these certificates. See Public Acts 2016, No.
16-55, § 4. Accordingly, the majority does not address
the applicability of our Supreme Court’s decisions in
Hoffman v. Kelly, supra, 138 Conn. 614, and Mason v.
Board of Zoning Appeals, supra, 143 Conn. 634.
I strongly disagree with the majority’s conclusion that
‘‘[t]he fact that the board and its members had no previ-
ous involvement, and made no determinations, with
respect to the East Coast [Towing] location approval
application undermines any claim that, in granting the
Pisano application, the board improperly reversed itself
. . . .’’ In reaching this conclusion, the majority states
that ‘‘the agency and the board are separate municipal
administrative agencies with distinct powers and duties
under the city charter.’’ The majority’s emphasis on
the differences between the agency and the board is
misplaced and inconsequential, as it ignores that neither
entity was exercising its zoning powers when it reviewed
the location approval applications for the property.
For all intents and purposes, the agency and the board
were the same entity when they reviewed the respective
applications. Both the agency and the board acted as
the agent of the Commissioner of Motor Vehicles pursu-
ant to the power delegated to them by § 14-54. See, e.g.,
New Haven College, Inc. v. Zoning Board of Appeals,
154 Conn. 540, 542, 227 A.2d 427 (1967); Dubiel v. Zon-
ing Board of Appeals, 147 Conn. 517, 520, 162 A.2d
711 (1960). In other words, the agency and the board
occupied the same role, had the same powers, and were
tasked with issuing the same certificate pursuant to the
same statute. Thus, I do not see a distinction between
the entities in this context, and I believe that the agency’s
prior decisions on location approval applications should
have precedential value.
Because of the majority’s holding, zoning boards of
appeal can now ignore all location approval decisions
made by other land use agencies prior to 2016. For
example, if the owner of an automobile repair shop,
which received its certificate of approval from a munici-
pality’s planning and zoning commission prior to 2016,
transfers ownership of the business to an unrelated
party, that party would need to seek approval from the
municipality’s zoning board of appeals. When reviewing
the party’s application, the zoning board of appeals will
not be bound by the planning and zoning commission’s
prior decision on the location, and it can deny the new
owner’s application even if no change in circumstances
has occurred. Thus, allowing boards of appeals to
reverse the decisions of other land use agencies without
providing justification could lead to inconsistent and
unpredictable results for future property owners. Fur-
thermore, in the present case, the Superior Court upheld
the agency’s denial of the East Coast Towing applica-
tion. That the court upheld a decision disapproving
the location of the same property only adds to the
precedential value of the agency’s decision.
If, on remand, the board decides to issue a certificate
of approval on the Pisano application, I believe that it
must also articulate whether a change in circumstances
has occurred since the agency’s decision on the East
Coast Towing application. The board should develop a
record that supports its decision, as a reviewing court
will not be able to supply its own reasons to uphold
this decision. I am not suggesting that the board cannot
reverse the agency’s prior decision regarding the prop-
erty. Rather, if the board issues a certificate of approval
on remand, I simply believe that it must state on the
record its reasons for departing from the prior decision.
II
I also take issue with the majority’s failure to address
the board’s imposition of conditions on the certificate
of approval when it erroneously reviewed the Pisano
application under the variance standard. The board
attached fourteen conditions to its certificate of approval
of the Pisano application. The trial court did not address
the issue of whether the board had the authority to
attach those conditions, even though the proposed use
of the property was fully permitted in the M-G zone in
which the property is located. On appeal, neither party
specifically challenges the board’s authority to attach
those conditions. I believe that this issue, however, is
subsumed within the plaintiff’s broader claim that the
board erred by treating the Pisano application as one
for a variance. Put differently, the board attached condi-
tions to the certificate of approval because it impermis-
sibly reviewed the Pisano application as if it were an
application for a variance.
‘‘In general terms, conditions may be attached to vari-
ances, special permits, site plans . . . and regulated
activities permits.’’ R. Fuller, 9 Connecticut Practice
Series: Land Use Law and Practice (4th Ed. 2015)
§ 21:14, p. 680. There exist statutes that permit munici-
pal zoning agencies to impose conditions on applicants
in certain situations. See, e.g., General Statutes § 8-2
(a) (special permits granted by zoning agency may be
subject ‘‘to conditions necessary to protect the public
health, safety, convenience and property values’’); Gen-
eral Statutes § 22a-42a (d) (1) (inland wetlands agency
may impose conditions on permit to conduct regulated
activity). Section 14-54, however, grants municipal land
use agencies only the power either to issue or decline
to issue certificates of approval of the locations for
which licenses are sought. The statute does not explic-
itly give these agencies the power to attach conditions
to the certificates of approval that they issue. In the
present case, as I previously have noted, the board was
acting as an agent of the Commissioner of Motor Vehi-
cles and, therefore, could act only with the powers
delegated to it by § 14-54.
I recognize that in Mohican Valley Concrete Corp. v.
Zoning Board of Appeals, 75 Conn. App. 45, 48, 815
A.2d 145 (2003), a zoning board of appeals attached
conditions to its certificate of approval. Pursuant to the
local zoning regulations, ‘‘the approval took the form
of granting the [applicants] a special exception.’’ Id.,
47. Thus, the zoning regulations are what provided the
zoning board of appeals with the authority to attach
conditions to the applicants’ use of the property. Fur-
thermore, in upholding the decision of the zoning board
of appeals, this court noted that ‘‘the board might have
taken account of the willingness of the defendants to
accept a certificate of approval with conditions designed
to mitigate some of the concerns raised by the plain-
tiffs.’’ Id., 62.
In the present case, however, the proposed use of
the property is permitted as of right in the M-G zone
in which the property is located. Thus, there are no
independent zoning regulations that permitted the
board to attach conditions to its approval. Furthermore,
my review of the hearing transcript reveals that, unlike
the situation in Mohican Valley Concrete Corp. v. Zon-
ing Board of Appeals, supra, 75 Conn. App. 62, neither
the defendant nor his counsel agreed to several of the
fourteen conditions listed in the board’s written deci-
sion. For example, the board imposed restrictions on
parking, vehicle storage, and equipment storage that
were not expressly discussed at the hearing.
I also recognize that there is a Department of Motor
Vehicles form titled ‘‘application for automobile dealer’s
or repairer’s license’’ that suggests that the board in
the present case was permitted to restrict the use of
the property when it issued its certificate of approval.5
Section 2 of this form, which is to be completed ‘‘by
local authorities of the city . . . in which the location
is proposed,’’ asks: ‘‘Are there any restrictions placed
on the licensee’s use of the property?’’ If the local
authority that completes the form answers in the affir-
mative, it must attach a copy of the restrictions that it
has imposed on the licensee. This form, however, does
not provide any explanation for when a local zoning
authority can impose ‘‘restrictions’’ on its approval of
an application. For example, this section could apply
in situations in which, as in Mohican Valley Concrete
Corp. v. Zoning Board of Appeals, supra, 75 Conn. App.
47 n.4, 48 and n.7, local zoning regulations permit a
local zoning authority to attach conditions to an appli-
cant’s use of a property. In the absence of any statutory
language granting local zoning authorities the authority
to restrict a licensee’s use of a property when issuing
a certificate of approval, simply including this question
on the form does not mean that local zoning authorities
possess such statutory authority.
In the present case, it is apparent that the board
attached conditions to its certificate of approval because
it acted as though it was reviewing a variance request
under the Stamford zoning regulations. Accordingly, I
believe that the majority’s failure to address the board’s
attachment of conditions to the certificate is inconsis-
tent with its conclusion that ‘‘the board improperly
applied the legal standard that governs variance approv-
als under the regulations.’’ These two errors inextrica-
bly are tied together. By not addressing whether the
board could have attached conditions to the certificate
of approval, the majority has invalidated the underlying
error of the board while leaving intact a result of its
error. On remand, if the board decides to approve the
Pisano application, I do not believe that it can attach
conditions to its approval because (1) it does not have
the statutory authority to do so, and (2) there are no
zoning regulations that independently provide the board
with this authority.
For the foregoing reasons, I concur in part and
respectfully dissent in part.
1
Where necessary, I will refer to Pisano Brothers Automotive, Inc., as
Pisano Brothers and to the defendant Pasquale Pisano as the defendant.
2
As this court noted in Elmcroft I, the trial court’s review of the board’s
decision was governed by the Uniform Administrative Procedure Act, Gen-
eral Statutes § 4-166 et seq. One Elmcroft Stamford, LLC v. Zoning Board
of Appeals, supra, 192 Conn. App. 279; see also Vicino v. Zoning Board of
Appeals, 28 Conn. App. 500, 504–505, 611 A.2d 444 (1992). Thus, because
the board stated on the record its reasons for approving the application,
the trial court could not look beyond those reasons to uphold the board’s
decision. See, e.g., Azzarito v. Planning & Zoning Commission, 79 Conn.
App. 614, 618, 830 A.2d 827 (‘‘[w]hen a [board] states its reasons in support
of its decision on the record, the court goes no further, but if the [board]
has not articulated its reasons, the court must search the entire record to
find a basis for the [board’s] decision’’ (internal quotation marks omitted)),
cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).
3
In its resolution disapproving the application, the agency made the follow-
ing findings:
‘‘1. The subject property is already intensively used for a 24/7 tow truck
operation with the stated intention to keep ten (10) tow trucks on the prop-
erty;
‘‘2. David M. Emerson, Executive Director of the Environmental Protection
Board, has recommended that a traffic operations and management plan
be provided to demonstrate that tow trucks and vehicles will not be staged
and queued on the city street. Mr. Emerson concludes that the use will have
a significant impact on the character of the site and surroundings resulting
from the need to park tow trucks on call and to move and store cars awaiting
release to their owners.
‘‘3. Howard J. Weissberg, P.E., Senior Transportation Engineer, Tighe &
Bond, has submitted a review of traffic, parking and safety issues and notes
that only one parking space is available to support used car inventory,
customer parking and tow truck parking. Mr. Weissberg further reports that
due to the size of the lot and building there is limited traffic circulation and
the potential for on-street parking and the back out of trucks and vehicles,
creating a potential conflict with traffic flow and safety concerns on Elm-
croft Road.
‘‘4. Significant concerns for safety of neighborhood children and nuisance
conditions and diesel fumes from the 24/7 towing and repair operations was
expressed by residents and owners of adjacent residential properties, elected
officials and representatives of the South End Neighborhood Revitaliza-
tion Zone.
‘‘5. The South End is rapidly becoming more residential in character,
with an estimated 4,000 new housing units and major public parks planned
immediately north and west of the subject property.’’ (Internal quotation
marks omitted.) East Coast Towing, Ltd. v. Zoning Board, supra, 51 Conn.
L. Rptr. 574.
4
All references to § 14-55 in this opinion are to the 2003 revision of the
General Statutes.
5
This form is to be submitted to the Department of Motor Vehicles after
a hearing on an application has taken place and a local zoning authority
has issued a certificate of approval of a proposed location.