LLC v. Manchester Planning & Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

I

On January 25, 2013, the plaintiff, Waverly Markets, LLC, commenced an appeal of a January 7, 2013 decision 1 by the defendant, the Manchester planning and zoning commission (commission), granting the application of the codefendant, Wal–Mart Real Estate Business Trust (defendant), for a special exception to construct a 158,420 square foot superstore at 205 Spencer Street in Manchester.   According to a September 23, 2013 affidavit by Richard Z. Cohen, who is the managing member of the plaintiff, the plaintiff has owned and operated a ShopRite grocery store at 214 Spencer Street, across the street from the defendant's property, since 1999 pursuant to a sublease agreement between the sublessor, ShopRite Supermarkets, Inc., and the plaintiff as sublessee.   The plaintiff's lease expires on December 31, 2013 and Cohen avers that the plaintiff has exercised its option to renew through December 31, 2018 and intends to exercise two additional option periods through 2028.2  Cohen also testifies that the plaintiff occupies 80.48 percent of the ShopRite plaza.

On August 5, 2013,5 the defendant filed a motion to dismiss the appeal based upon a lack of subject matter jurisdiction arguing that the plaintiff is not statutorily or classically aggrieved.   The commission filed a memorandum in response to the motion to dismiss on September 6, 2013.   On September 23, 2013, the plaintiff filed a memorandum in opposition to the motion to dismiss arguing that it is classically aggrieved.   The defendant filed a memorandum in reply on October 9, 2013.   This court held a hearing on the motion on October 30, 2013.

II

General Statutes § 8–8(j) provides:  “Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal.   If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing.   The court may, on the record, grant or deny the motion ․”

“It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial 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 ․ Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it ․

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation ․

“Finally, as to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest.   Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Citations omitted;  internal quotation marks omitted.)  Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 575–76 (2013).

III

At the October 30, 2013 hearing, the plaintiff stipulated that it was not claiming statutory aggrievement.   Hence, the issue herein is whether the plaintiff has proven that it is classically aggrieved.   In its complaint, the plaintiff alleges, in relevant part, that:

1.  The plaintiff/appellant Waverly Markets, LLC is the operator and tenant at a property known as 214 Spencer Street, Manchester, Connecticut, consisting of more than 60,000 square feet, pursuant to a long-term successor lease that began in 1999 and whose term now extends to 2018 with additional options to 2028 (“Plaintiff's Property”).1

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6. At the Public Hearing, the Commission heard credible, probative evidence from members of the public, including the Plaintiff's traffic expert, relating to specific traffic congestion issues raised by the Application, inadequate storage space for queuing of cars coming to or leaving the Subject Property and on Spencer Street for other businesses, and resulting safety concerns.

7. Additional testimony, including by another traffic engineer who reviewed the Application, noted the thirty percent increase in square footage associated with the proposed development and challenged the estimates of existing and future traffic (volumes) at the Subject Property by the Applicant as unduly aggressive (low) rather than conservative in analyzing its impact.

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10. The plaintiff/appellant Waverly Markets, LLC, is aggrieved by the decision of the [commission] and by approval of the Applications because it is the long-term owner of an establishment operating at 214 Spencer Street, the driveway and parking lot for which are within one hundred feet of the land involved in the Commission's decision, the Subject Property, being located immediately across the street.

11. The plaintiff/appellant is aggrieved by the decision of the Commission because it has a specific personal and legal interest in the subject matter of the decision that has been specially and injuriously affected in that the traffic issues attendant to the proposed development as defined by three traffic engineers were not resolved prior to the Commission's vote to approve the Application and the resulting congestion, inadequate queuing space, and safety issues will impair access to Plaintiff's driveway and directly affect traffic operations for its customers.”

As to the first prong of classical aggrievement, the plaintiff has shown a specific, personal and legal interest in the subject matter of the decision due its long-term lease and the location of its business with its entrance directly across the street from the defendant.   See Stop & Shop Supermarket Co., LLC v. Planning Commission of Groton, Superior Court, judicial district of New London, Docket No. CV–11–6009524–S (September 28, 2012, Purtill, J.T.R.) (finding “that Stop & Shop, with its long-term lease, has satisfied the first prong of the requirement for classical aggrievement in that it has a personal and legal interest in the subject matter of the Commission's decision as opposed to the interest of all members of the community”).   The facts that the plaintiff is not the sole occupant of the ShopRite plaza and that it is a sublessee as opposed to the owner do not prevent the plaintiff from maintaining an appeal as an aggrieved party.   See Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989) (“This court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party under §§ 8–8 and 8–9.   Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order”).

As to the second prong, “[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Wallingford v. Zoning Board of Appeals, supra, 146 Conn.App. 576.   In the present case, as noted above, the plaintiff alleges that the traffic congestion issues resulting from the new development across the street will directly affect access to its driveway by its customers.   At the public hearing, two traffic engineers, Steven F. Mitchell for the owner of 214 Spencer Street and David Spear for the plaintiff, discussed engineering concerns.   Specifically, they questioned the validity of the defendant's traffic studies, including but not limited to, the disparity between trip generation rates and traffic counts (Return of Record [ROR], Item 90, pp. 31–33;  Item 92, pp. 45–46);  directional splits and actual traffic counts (ROR, Item 92, p. 48–49);  and the failure to conduct the proper analysis (ROR, Item 90, p. 32;  Item 92, p. 47).   In his November 19, 2012 report, Spear noted, “[q]ueuing analysis summary information is provided only at the Site Drive intersection with proposed mitigation.   The critical 95th percentile queue exceeds the existing storage space for the ․ ShopRite NB left (150 foot Q, 65 foot storage).”  (ROR, Item 82E.) He further stated, “[q]ueuing analysis shows a storage space deficiency at the Site Drive intersection.”  (ROR, Item 82E.)

Again, in his September 30, 2013 affidavit, Cohen noted, referring to Spear's report, that “traffic counts for the existing stores Pep Boys and Ocean State Job Lot are underestimated post-development and corrected volumes will alter the capacity analysis and queuing analysis ․ Inadequacies of queuing lanes and increased traffic will impair access to the ShopRite Plaza by customers and delivery trucks.”  (See also ROR, Item 82E;  Item 90, p. 32.)   This is, therefore, not a case where the appellant is some distance away and is complaining about a general increase in traffic affecting everyone.   See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 543–44, 833 A.2d 883 (2003) (affirming that specific personal and legal interest of plaintiffs not specially and injuriously affected where alleged traffic congestion was quarter mile away from plaintiffs' properties).

Cohen's testimony alone might be deemed to be nothing more than “unsubstantiated fears.” ²  See Walls v. Planning & Zoning Commission, 176 Conn. 475, 477–79, 408 A.2d 252 (1979) (affirming that “unsubstantiated fears” concerning traffic did not establish aggrievement).   Nevertheless, the plaintiff alleges and has provided expert testimony that its access, directly across the street from the defendant's entrance, would be negatively impacted.³  Traffic congestion and safety are specific concerns establishing aggrievement and the fact that the defendant would be competing economically ⁴ with the plaintiff does not diminish those concerns.   See Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426, 232 A.2d 330 (1967);  McDermott v. Zoning Board of Appeals, 150 Conn. 510, 191 A.2d 551 (1963).   Thus, the allegations of the complaint and Cohen's testimony, together with the expert testimony and reports in the record, establish a possibility that a legally protected interest of the plaintiff has been adversely affected.   See Wallingford v. Zoning Board of Appeals, supra, 146 Conn.App. 576.

For the above reasons, the court finds that the plaintiff has proven that it is aggrieved and the defendant's motion to dismiss is denied.

Berger, J.

 1Notice of the decision was published in the Journal Inquirer on January 10, 2013.

 2Cohen testified that a grocery store existed on the site prior to the plaintiff's occupancy and exhibits introduced at the hearing indicate that a grocery store has been on the property since at least 1970.⁵

FOOTNOTES

FN1. Exhibits entered into evidence at the hearing prove the allegations of this paragraph of the complaint.   The original lease from Cedar Investors, Inc., to Supermarket General Corporation, dated November 10, 1970, was for a term of twenty-five years with an option to renew for six separate five-year periods..  FN1. Exhibits entered into evidence at the hearing prove the allegations of this paragraph of the complaint.   The original lease from Cedar Investors, Inc., to Supermarket General Corporation, dated November 10, 1970, was for a term of twenty-five years with an option to renew for six separate five-year periods.

FN2. At the October 30, 2013 hearing, the commission argued that the plaintiff's concerns had been addressed in its certificate of approval (ROR, Item 81);  referencing a memorandum, dated December 3, 2012, with recommendations from the town's traffic engineer, James Mayer.  (ROR, Item 67.)   A review of that memorandum does not indicate that it specifically resolved Spear's opinion that the defendant's study was inadequate..  FN2. At the October 30, 2013 hearing, the commission argued that the plaintiff's concerns had been addressed in its certificate of approval (ROR, Item 81);  referencing a memorandum, dated December 3, 2012, with recommendations from the town's traffic engineer, James Mayer.  (ROR, Item 67.)   A review of that memorandum does not indicate that it specifically resolved Spear's opinion that the defendant's study was inadequate.

FN3. “[A] plaintiff may prove aggrievement by relying on facts established in the record as a whole, including the administrative record.”  State Library v. Freedom of Information Commission, 240 Conn. 824, 832, 694 A.2d 1235 (1997);  see also R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 32:3, p. 140..  FN3. “[A] plaintiff may prove aggrievement by relying on facts established in the record as a whole, including the administrative record.”  State Library v. Freedom of Information Commission, 240 Conn. 824, 832, 694 A.2d 1235 (1997);  see also R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 32:3, p. 140.

FN4. The plaintiff does not allege a loss of revenue as its specific concern.   See New England Rehabilitation Hospital of Hartford, Inc. v. CHHC, 226 Conn. 105, 127, 627 A.2d 1257 (1993) (“[a] speculative loss of revenue is insufficient to confirm standing and establish aggrievement”)..  FN4. The plaintiff does not allege a loss of revenue as its specific concern.   See New England Rehabilitation Hospital of Hartford, Inc. v. CHHC, 226 Conn. 105, 127, 627 A.2d 1257 (1993) (“[a] speculative loss of revenue is insufficient to confirm standing and establish aggrievement”).

FN5. The defendant filed its memorandum in support of its motion to dismiss on August 2, 2013..  FN5. The defendant filed its memorandum in support of its motion to dismiss on August 2, 2013.

Berger, Marshall K., J.