Inland Wetlands v. Epb, No. Cv 99 017 1749 S (Dec. 12, 2001) , 2001 Conn. Super. Ct. 16469 ( 2001 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION On November 16, 1998, the City as the owner, and Stamford Golf Centre as the developer, filed an application for a permit with the Environmental Protection Board of the City of Stamford (the "EPB").

The Applicants were seeking approval from the EPB to conduct regulated activities on a portion of the 13.7 acre parcel off Brownhouse Road, owned by the City of Stamford. and known. as Rosa Hartman Park.

In approximately one half of the area of the Park, the developer proposed to construct a golf driving range, putting green, miniature golf course, batting cages, playground and clubhouse

The EPB held public hearings on the application on January 28, 1999 and February 11, 1999.

At the March 18, 1999 meeting of the EPB, the EPB unanimously approved the application with conditions.

On September 5, 2001, this Court held a hearing and found that the Town of Greenwich owned property adjacent to Rosa Hartman Park and aggrievement was found for the Town of Greenwich.

On November 19, 2001, this Court held a hearing to determine the current status of the project.

At the November 19, 2001, hearing Attorney Charles Lee, representing the developer, Stamford Golf Center, presented the Court with a letter which he had sent by facsimile and certified mail to the Mayor of the CT Page 16470 City of Stamford on the morning of November 19, 2001. A copy of the letter is attached to this opinion.

Stamford Golf Center ("SGC") through Attorney Lee, informs the City of Stamford "that is not feasible or prudent to proceed with the Rose Hartman Park Project."

The letter goes on to say "SGC takes this action because, among other things, it can no longer obtain financing for the Project in the current economic climate."

SGC cites Paragraphs 3.5(e) and 20 of License and Operating Agreement between the City of Stamford and SGC as the authority to terminate the Agreement.

The Director of Legal Affairs for the City of Stamford, Andrew McDonald, on the record stated "And the fact that Golf Center has utilized its rights under the Lease Agreement to terminate the License Agreement is acceptable to the City."

Attorney Lee represented, on the record, that SGC has not assigned its rights under the License and Operating Agreement and that it is giving up its rights.

The Court finds that the License and Operating Agreement is void and unassignable.

"In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal."Darien v. Estate of D'Addario, 258 Conn. 663, 676.

The controversy over the decision of the Environmental Protection Board of the City of Stamford, in this matter, is moot.

Dated at Stamford, Connecticut this 12th Day of December 2001.

Tobin, J.

Attachments

Paul, Hastings, Janofsky Walker LLP 1055 Washington Boulevard, Stamford, CT 06901-2217 telephone 203-961-7400/facsimile/203-359-3031/ internet www.paulhastings.com CT Page 16471

Atlanta/Costa Mesa/London/Los Angeles/New York/ San Francisco/Tokyo/Washington, D.C.

Paul Hastings

(203) 961-7413 charleslee@paulhastings.com

November 19, 2001 27146.81998

VIA CERTIFIED MAIL VIA FACSIMILE

Hon. Dannel Malloy Mayor 888 Washington Boulevard Stamford, CT 06901

Re: Stamford Golf Centre in Rosa Hartman Park

Dear Mayor Malloy:

Stamford Golf Centre, LLC ("SGC") has determined that it is not feasible or prudent to proceed with the Rosa Hartman Park Project Accordingly, pursuant to Paragraphs 3.5(e) and 20 of the License and Operating Agreement between the City of Stamford and SGC, SGC hereby terminates such agreement and renounces any and all rights to possession, access or use in Rosa Hartman Park.

SGC takes this action because, among other things, it can no longer obtain financing for the Project in the current economic climate. The family golf industry, in particular, is in a sharp decline at this time nationally. As you may know, Family Golf Centers, Inc., the largest family golf operation in the country, filed for bankruptcy earlier this year. Accordingly, all sources of financing for this sort of project have simply dried up and SGC sees no near term prospect of that changing. As a result, SGC must respectfully and regretfully terminate the agreement as permitted therein.

Paul Hastings

Hon. Dannel Malloy November 19, 2001

CT Page 16472

SGC wishes you and the City every success and hopes that there will be an opportunity in the future to collaborate on another project for the benefit of the people of Stamford.

Sincerely yours,

Charles T. Lee of PAUL, HASTINGS, JANOFSKY WALKER LLP

cc: Mr. Phillip Adler