Norwalk Hospital Association v. City of Norwalk Zoning Commission et al. (2012)

MEMORANDUM OF DECISION

I. Facts

Norwalk Hospital Association (Norwalk Hospital) appeals from a decision of the Norwalk Zoning Commission (Commission) approving an application by 166 Glover Avenue, LLC (166 Glover) to amend a previously approved site plan by eliminating the construction of a parking garage on its Glover Avenue property.   The previous site plan, approved by the Commission in May 2007, included a proposed garage providing 318 parking spaces.   The application to amend the site plan was dated January 21, 2009 Return of Record (ROR) Exhibit (Ex.) 42.   The application to amend sought approval to eliminate the garage and provide 169 spaces, some of which would be off-site.

A public hearing was held before the Commission held March 25, 2009 when 166 Glover explained and supported the application, and representatives of Norwalk Hospital opposed it.   ROR, Ex. 45 (March 25, 2009 meeting transcript);  ROR, Ex. 6 (minutes).   Norwalk Hospital's opposition was based on a number of factors, not all of which are germane to this appeal, but many of which were set out in a letter and enclosures, dated January 30, 2009 from its attorney to the Director of the Zoning Commission.   ROR, Ex. 21.   166 Glover's and Norwalk Hospital's positions were further elucidated in lengthy letters to the Commission before the public hearing.   ROR, Ex. 35 (March 4, 2009 letter from 166 Glover) and 23 (March 20, 2009 letter from Norwalk Hospital's attorney).   On April 2009 the application to amend was discussed by the Commission's Plan Review Committee, and it was determined that the staff would prepare alternative resolutions, approving and denying the application for consideration.   ROR, Exs. 27, 5. The full Commission had already noted that the applicable regulation required one parking space per 200 square feet of active area.   ROR, Exs. 29, 5.

On April 5, 2009 the full Commission considered the two draft resolutions.   The resolution denying the application was defeated 4–3 with one abstention.   The resolution approving the application passed by a 4–3 vote with one member abstaining.   ROR, Ex. 4.¹ The full text of the Commission's resolution of approval reads:

RESOLVED that application # 1–09 SPR, submitted by 166 Glover Avenue LLC, for the removal of a previously approved garage at the existing office building at 166 Glover Avenue, as shown on architectural plans by CPG Architects of New York and Connecticut, entitled “Stamford Hospital Norwalk Ambulatory Care Building, 166 Glover Avenue” dated 04–09–08, revised to 01–20–09 and by site plans prepared by Rotondo Engineering, LLC, Shelton, CT, dated 01–19–09 be approved with the following conditions:

1.  That all required CEAC signoffs be submitted;  and

2.  That within 6 months of occupancy, a follow up traffic study be submitted to the Zoning Commission to confirm the original traffic study;  and

3.  That any graffiti on the site, now or in the future, be removed immediately;  and

4.  That any changes to this plan be reviewed and approved prior to those changes being implemented;  and

5.  That if the proposed parking across the street is required for future tenants of this site, that a long-term parking agreement be filed in accordance with Section 118–1220 H of the Zoning Regulations;  and

6.  That a Professional Engineer, registered in the State of Connecticut, certify that the installed parking lot improvements comply with City Construction Standards;  and

BE IT FURTHER RESOLVED that the plans clearly define the detailed tenant space shown as individual physicians offices which are an allowed use under the zoning regulations;  and

BE IT FURTHER RESOLVED that the submitted parking requirements which show the building requiring 168 spaces comply with the zoning regulations;  this would be met by the 129 remaining spaces on-grade on the site and 40 spaces proposed for across the street in a garage structure;  and

BE IT FURTHER RESOLVED that the reason for this approval is that the proposed project complies with the Building Zone Regulations, Section 118–503, Executive Office Zone and Section 118–1451, Site Plan Review;  and

BE IT FURTHER RESOLVED that the effective date of this approval shall be April 24, 2009.

ROR, Ex. 3.²

Norwalk Hospital timely appealed the Commission's approval.   166 Glover moved to dismiss the appeal on the grounds that Norwalk Hospital was not aggrieved.   This court denied the motion to dismiss on January 25, 2010 holding essentially on the basis of the allegations pleaded in Norwalk Hospital's appeal, the hospital was aggrieved and had standing to prosecute the appeal.   The appeal was heard on November 15 and 16, 2011 along with the appeal of a consolidated case involving the same parties and piece of property.

II. Standard of Review

The scope of review of a site plan application by a zoning commission is established, in part, by General Statutes § 8–3(g).  The zoning regulations may require that a site plan be filed with the commission to aid the commission in determining the conformity of the proposed plan with zoning regulations and a denial or modification of the plan “shall set forth the reasons” therefore.   Id. A site plan may be modified or denied only if it fails to comply with requirements [in the regulations].  Id. The local zoning regulations control the scope of a commission's review of a site plan application.  Konigsberg v. Board of Alderman, 283 Conn 597 (2007).

The Connecticut Supreme Court has stated “[i]f the application conforms to the regulations, the board cannot deny the application for subjective reasons that bears no relationship to the zoning regulations.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals of Ridgefield, 257 Conn. 456, 469 (2001).   In challenging the Commission's approval of an application, the plaintiff bears the burden of proving that the Commission “has not acted fairly with proper motives and upon valid reasons.”   Trixie Norton, LLC v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, CV 03 0483300 (December 14, 2004, Sequino, J.) [38 Conn. L. Rptr. 353] [citing Rocchi v. Zoning Board of Appeals of Glastonbury, 157 Conn. 106, 110 (1968) ].

“Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ in order to have standing to bring an administrative appeal, a person must be aggrieved.”  United Cable Television Services Corp. v. Department of Public Utility Control, 235 Conn. 334, 343 (1995).   Standing, however, is not a technical rule designed to keep parties out of court;  it is a practical concept to keep courts and parties free of lawsuits brought to adjudicate nonjusticable interests.  Id. There are two types of aggrievement:  classical and statutory.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486 (2003).

Norwalk Hospital has alleged and attempted to prove classical aggrievement, a concept defined by a two-stage analysis:  first, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of what the party challenges, as distinguished from a general interest, and second, the party must establish that this specific, personal and legal interest has been specially and injuriously affected by the action.   Wilcox v. Webster Insurance Co., 294 Conn. 206, 214–15 (2009).   “Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.  Id. 215.

III. Aggrievement

The issue of Norwalk Hospital's aggrievement has been fiercely contested at both the pretrial and trial stages of this case.   Certain discovery outside the record was permitted, and testimony on the issue was taken at trial.   The essence of Norwalk Hospital's aggrievement claim is that the building at 166 Glover Avenue which is located north of the Merritt Parkway between what is known as “new” or “super” Route 7 to the west, and “old” Route 7 and the Norwalk–Danbury rail line to the east, has been leased to Stamford Hospital which intends to use the building in a manner that will specifically and adversely impact the mission and operations of Norwalk Hospital.   166 Glover and the Commission contend that Norwalk Hospital cannot, and has not, proved it was injured by a decision of the Commission to allow the elimination of a parking garage.

At the trial, the following evidence came forth.   Stamford Hospital has leased the entirety of 166 Glover Avenue (about 76,000 square feet) for a fifteen-year period with some rights to extend the term.   Exhibit A;  Testimony of Waters, general counsel of 166 Glover.   The lease allows Stamford Hospital to use the premises for “medical office or clinical purposes” defined as “primary and specialty care and disease management care to patients on an outpatient basis and related diagnostic and other ancillary services, including but not limited to, pharmacy, radiology and laboratory.”   Ex. A. There was also evidence presented regarding plans by Stamford Hospital in 2007 to use the building as “Norwalk/Wilton Ambulatory Care Center” which would include physician offices, imaging services, an immediate care center, physical therapy cardiac rehabilitation, chemical infusion, cardiology services and a blood draw area.   Exs. B. And C.

Norwalk Hospital presented testimony from, and a report prepared by Ronald Dreskin, president and managing partner of Integrated Health Care, a consulting firm that has performed consulting services for a number of Connecticut hospitals including Stamford, in business or non-clinical areas such as financial analysis and fiscal projections.   Dreskin has considerable experience as a financial official with healthcare facilities in New York City and Connecticut, and the court allowed in his testimony and report.   Ex. E. The evidence provided by Dreskin was based on documents in the Return of Record in this case and the consolidated case, 166 Glover Avenue, LLC v. City of Norwalk Zoning Commission, Superior Court CV 08 4013524 as well as exhibits admitted into evidence in this case, especially the business plan proposal made to Stamford Hospital by Kurt Salmon Associates for the “Norwalk/Wilton Ambulatory Care Center” marked as Exhibit 3.

For the most part, the court accepts the conclusions and opinions of Dreskin.   166 Glover pointed out that Dreskin was neither an economist nor an accountant, and in fact, held no professional certifications or licenses.   It was also emphasized that his conclusions as to the financial impact on Norwalk Hospital was based in part on projections contained in Exhibit 3 when in fact, the actual building did not have any operating history under the auspices of Stamford Hospital.   Nevertheless, the court found that Dreskin's experience in the field of healthcare facility finances was impressive, and his opinions would be of assistance in resolving the aggrievement issue in this case.   Essentially, Dreskin's testimony and report described the adverse financial consequences to case.   Essentially, Dreskin's testimony and report described the adverse financial consequences to Norwalk Hospital of a facility at 166 Glover providing outpatient services of the kinds set forth in the Salmon Associates business plan proposal, and in the floor-by-floor drawings submitted to the Commission in this case, and the consolidated case.

Dreskin's report and testimony contained several points and conclusions.   The primary service area for Norwalk Hospital includes, in addition to its namesake city, the towns of Westport, Weston, Wilton and New Canaan.   The population of this area is estimated to grow slowly (1.24%) over the next five years.   Ex. E, p. 8. Slightly less than 40% of the households in the City of Norwalk have income of $75,000 or more, and slightly more than 70% of households in the four towns comprising the rest of the service area have that income level.  Id., p. 9. 68% of households with less than $75,000 income are covered by Medicaid, and 56% of such households are covered by Medicare.   The corresponding percentages for the $75,000 and over income households are 4.8% and 6.9%. Id., 10. 62% of admissions to Norwalk Hospital's Emergency Department in 2010 are covered by Medicaid, Medicare, or have no health insurance.  Id., 18.   Three-quarters of the costs of care provided by Norwalk Hospital are covered by Medicare;  three-fifths of its costs are covered by Medicaid, whereas private insurance pays 131% of the cost.   See New England Health Care v. Mt. Sinai Hospital, 65 F.3d 1024, 1027 (2d Cir.1995) (noting that “American hospitals have a notable history of providing medical care to those who cannot afford it” and because Medicare and Medicaid do not cover all costs “hospitals traditionally overcharge their paying patients—those with private insurance to cover the costs of uncompensated or under-compensated care”).

Using the projections contained in the Salmon business plan proposal, (Ex. C) Dreskin estimated a fully operating ambulatory care center at 166 Glover Avenue operated by Stamford Hospital would, at the end of five years, adversely affect Norwalk Hospital's revenue by a minimum of $10 million annually.   This financial effect would arise from more patients being referred to Stamford Hospital by the physicians at 166 Glover Avenue, a decrease in ambulatory surgery services provided by Norwalk Hospital and a decrease in Norwalk Hospital outpatient revenues due to the services, especially imaging services, being provided at the proposed Stamford Hospital facility.  Id., pp. 25–28.   Because the high income families in the four towns other than Norwalk that make up the primary service area, generate a higher ratio of revenues compared to costs of care, the Stamford Hospital facility on Glover Avenue in Norwalk would draw the higher paying patients who do not need the services of an Emergency Department away from Norwalk Hospital.   Ex. E, pp. 10, 20, 31.   The revenue loss would impair the ability of Norwalk Hospital, a non-profit charitable organization with an obligation to provide health care to those in need, to service the medical requirements of its primary service area, and particularly affect the community services offered to the City of Norwalk in providing health care to those who do not have the means to pay.  Id. p. 73.

The Connecticut Supreme Court has stated that the future loss of revenues is a “prospective and speculative injury, insufficient to qualify [one] as aggrieved, unless the competition is ‘unfair’ or ‘illegal.’  New England Rehabilitation Hospital v. CHHC, 226 Conn. 105, 137 (1993) (emphasis added).  166 Glover contends that Norwalk Hospital's claims of aggrievement have nothing to do with the issues before the Commission regarding their application to eliminate a parking garage from the site plan for the property.   It also contends that Norwalk Hospital should not be able to rest its argument of illegal or unfair competition on its own contention that 166 Glover is violating the zoning laws.   While these arguments have some appeal, they overlook the fact that the Commission has already found that the facility proposed by 166 Glover is a “healthcare facility” not allowed in the Executive office Zone where 166 Glover Avenue is located.   On appeal, that finding has been sustained by this court as being supported by substantial evidence.   166 Glover Avenue, LLC v. City of Norwalk Zoning Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 08 4013524 (February 22, 2012, Adams, J.).   There is certainly evidence that in 2007 and 2008 166 Glover and its tenant were seriously considering developing the subject building into an ambulatory care center that, as spelled out in the evidence presented by Dreskin, could have a serious adverse impact on Norwalk Hospital.   Subsequently, it has become less clear what the future holds for the building, but the “possibility of injury” to Norwalk Hospital in a specific and special manner has not disappeared, and the court finds there is aggrievement.

III. Discussion

The court now turns to the merits of the present appeal.   Norwalk Hospital contends that the Commission's decision to approve the application to amend the site plan by reducing parking availability from 318 spaces to 169 spaces was based on a misapplication of an “unwritten” rule or practice used by the Commission in computing the required number of spaces for physicians' offices, and that the rule or practice itself was an unreasonable and improper interpretation of the zoning regulations.   166 Glover responds that the Commission properly found that 169 parking spaces was adequate at this time based on the regulations and a consistent interpretation of them.   To resolve these arguments one must carefully review the regulations in question.   The Norwalk Zoning Regulations (NZR) are found in the Supplemental Return of Record (SROR) Exhibit 49, dated November 17, 2009.   NZR § 118–1220 B states:

(1) Active commercial floor area [applies to Subsection C(12), (13) and (15) is the area the use of which is directly related to parking generation and shall specifically exclude area devoted to the housing of automated equipment, service equipment, inventory storage space, space devoted to serving and maintaining the premises, employee service, common lobby area in office buildings,

(2) Until the active commercial floor area is known, seventy-five percent (75%) of the gross floor area shall be the basis for determining the parking and loading required.

NZR § 118–1220C(13)(a) provided, at the time the application to amend was filed, that “physicians, dentists and chiropractors” offices required “5 parking spaces or 1 parking space per 200 square feet of active commercial floor area, whichever is greater.” ³

The application to amend calculated that “based on floor plans developed by [Stamford Hospital]” the required parking spaces for the offices of physicians on those plans was 22 parking spaces.   ROR, Exhibit 42, Schedule C;  ROR, Exhibit 26.   The use of the remainder of the office space was not yet determined, according to the application to amend, and therefore NZR § 118–1220B(2) required that parking be based on 75% of gross floor area.   That requirement was calculated as 38,951 square feet multiplied by 75% = 29,213.25 square feet divided by 1 space per 200 feet = 146 spaces.  Id. Thus, 166 Glover submitted that this amended site plan would require 168 parking spaces.

Norwalk Hospital does not seriously contest these calculations, but does contest the manner which 166 Glover and the Commission arrive at the amount of active commercial floor area for physician's offices.   The parties appear to agree that in assessing the amount of “active commercial floor area” under NZR § 118–1220B(1), the Commission has only counted treatment areas for patients and not counted waiting rooms or doctor's offices.   See ROR, Exhibit 45, p. 3;  166 Glover memorandum (Dkt. Entry 116.00) pp. 8, 11;  Norwalk Hospital memorandum (Dkt. Entry 114.00) pp. 16, 20.   This approach by the Commission is what Norwalk Hospital refers to as the “unwritten rule.”

Norwalk Hospital contends that the Commission's interpretation of NZR § 118–1220B(1) is erroneous because it is inconsistent with the regulation's language and is illegal.   Specifically, it is argued that the regulation language emphasizes that active commercial floor area is that area which generates the need for parking and such areas reasonably include more than treatment rooms.   Norwalk Hospital argues that the use of doctor's spaces, nurse stations, and waiting rooms are all spaces that generate a need for parking because doctors, nurses and patients all must park.

“[I]t is well established that a zoning commission has reasonable discretion in applying and interpreting its regulations.”  Graff v. Zoning Board of Appeals, 277 Conn. 645, 667 (2006).   Although the court is not bound by a municipality's interpretation, that interpretation placed on it in the past is entitled to some consideration.   R. Fuller, 9A Connecticut Practice Series, Land Use Law and Practice, § 34–12 (2007 ed.);   see also Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 418 (2007) (“Although this court is not bound by a zoning board's interpretation of its regulations, a board's reasonable, time-tested interpretation is given great weight”).

The regulation makes reference to areas “directly related to parking generation” and also specifically excludes areas devoted to “the housing of automated equipment, service equipment, inventory storage space, space devoted to serving and maintaining the premises, employee service, common lobby area in office buildings, etc.”   166 Glover argues that excluding offices and waiting rooms from the square footage calculation is consistent with the regulation requiring exclusion of employee service areas and common lobbies.   While one can quibble with excluding doctor's offices under the rubric of employee service area, many doctors do not provide diagnosis or treatment in their private office.   The exclusion of waiting room area is clearly authorized by the regulation's exclusionary language.   Patients do not make a doctor's appointment or come to the building for the purpose of sitting in a waiting room;  they come to get treated or diagnosed.   The court determines that the Commission's interpretation of NZR § 118–1220B(1) is not arbitrary or illegal, and there is no evidence that it has been applied inconsistently.   The court upholds the application of the regulation in this case.

Norwalk Hospital contends that 166 Glover's application to amend should not have been decided on the basis of the parking regulation in effect at the time application was filed because the application did not conform with the regulation as required by General Statutes § 8–2h.   It is argued that the application to amend was deficient in five instances.   The first instance is essentially a rehash of the argument discussed above concerning the Commission's interpretation of the parking regulations for doctor's offices.   The remaining claimed shortcomings comprise a kind of ‘wish list,’ i.e. an updated traffic report was not submitted;  the application did not contain the signature or authorization of the off-site area owner;  the plans for off-site parking were not engineered, and the schematic building plans were vague.   All of these deficiencies appear to be adequately dealt with in the conditions imposed in the resolution of approval.   Specifically, the first “Resolved” paragraph at subparagraphs 2, 5 and 6, and the second “Resolved” paragraph deal explicitly with the claimed inadequacies in a manner that this court deems satisfactory.   In any event, a Zoning Commission “has discretion to decide whether an application is sufficiently complete with the material submitted to proceed with the application,” and the court should not substitute its judgment in place of the Commission's decision that it has enough information to proceed.   Knapp v. Environmental Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 96 0152111 (April 27, 2000, Nigro, J.).   In this case the Commission appears to have carefully considered the application.   The drafting and consideration of the competing resolutions is evidence of the informed attention given to the application as progressed through review by Plan Review Committee and a final vote by the Commission.   There is no basis for the court to upset the final determination.

Finally, Norwalk Hospital argues that it was illegal and arbitrary for the Commission to approve the application on the basis of incomplete and vague floor plans (ROR, Exhibit 48A) when, Norwalk Hospital claims, the whole purpose of the application was to file it at a time before the parking requirements for “medical offices” changed.   According to Norwalk Hospital, the Commission approval leaves the Commission without adequate knowledge as to the intended use of the subject building.   Given the substantial attention afforded to this project by Norwalk Hospital and the Commission, this contention lacks merit and does not provide a basis for overturning the Commission decision.   For the present, the approval of the application specifically found that the physician's offices thus far delineated to be “clearly” defined.

IV. Conclusion

The appeal by Norwalk Hospital is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. ROR, Ex. 4 are minutes of the April 15 meeting which are specifically marked “draft not approved by Commission.”   The relevant portions are not disputed and are confirmed by other documents in the record..  FN1. ROR, Ex. 4 are minutes of the April 15 meeting which are specifically marked “draft not approved by Commission.”   The relevant portions are not disputed and are confirmed by other documents in the record.

FN2. The full text of the proposed resolution to disapprove the application to amend is found at ROR, Ex. 5..  FN2. The full text of the proposed resolution to disapprove the application to amend is found at ROR, Ex. 5.

FN3. The SROR does not contain NZR § 118–1220C(13)(a) as it existed at the time the application to amend was filed;  rather it contains the subsection which became effective January 30, 2009 and required 1 space per 200 square feet of “gross floor area.”   Nevertheless, the regulation as it existed at the time of filing is adequately described in ROR, Ex.42 (Schedule C) and in the parties' memoranda.   There is no question that 166 Glover filed its application to amend with an eye to beating the January 30, 2009 effective date of the new regulation..  FN3. The SROR does not contain NZR § 118–1220C(13)(a) as it existed at the time the application to amend was filed;  rather it contains the subsection which became effective January 30, 2009 and required 1 space per 200 square feet of “gross floor area.”   Nevertheless, the regulation as it existed at the time of filing is adequately described in ROR, Ex.42 (Schedule C) and in the parties' memoranda.   There is no question that 166 Glover filed its application to amend with an eye to beating the January 30, 2009 effective date of the new regulation.

Adams, Taggart D., J.T.R.