City Attorney’s Green Light Of Controversial Fairfield U. College Location In North End Draws Sharp Rebuke From Retired Judge Lopez

A legal and neighborhood battle looms over a City Attorney’s Office opinion allowing Fairfield University to locate a two-year college on property owned by the Diocese of Bridgeport in the North End. Neighborhood leaders, including City Councilwoman Michelle Lyons, oppose the plan citing traffic and congestion concerns that would devalue area properties.

Retired Superior Court Judge Carmen Lopez, on behalf of Lyons, has issued her own take on the proposal asserting the city’s legal position is flawed thus requiring zoning approval by the city’s land use board. A letter served Monday on Zoning Administrator Dennis Buckley declares “A Special Permit must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique site specific conditions, including traffic problems, property values, and neighborhood uses.”

For background see here

We start below with a recent letter from city legal counsel Russell Liskov to Buckley and Economic Development Director Tom Gill.

I have reviewed the application for the use of the above property by Fairfield University. The property and plans and uses keep the property as an educational site. The prior approvals by the Bridgeport Planning and Zoning Commission has given several specials exceptions to this property in the past. It is my legal opinion that these special exceptions run with the land and are akin to a variance. Once the special exception is granted, unless the owner affirmatively relinquishes such special exception, it remains in place in perpetuity.

The case of Griswold Hills (citation omitted). Garibaldi at 163 Conn.235 (1972), and Fromer at 32 Conn. App. 799 (1993) and Robert Fuller on Land Use and practices further supports my legal conclusion that the property continues to be used as of right for educational purposes and is allowed based upon the special exceptions granted in the past. The use has never been abandoned and thus, the special exception continues to run with the land and is a pre-existing use and continues on for educational purposes.

If you have any further questions, I am available.

Letter from Judge Lopez to Buckley with a copy to Liskov:

I am writing to you at the request of Bridgeport City Council Member Michelle Lyons, regarding the above mentioned matter, and your email to Council Member Lyons, of March 22, 2022.

As you know, Council Member Lyons, on behalf of an area in which she resides and which she represents on the City Council, has been vocal in her opposition to plans aimed at locating a proposed college on Jewett Avenue property owned by the Roman Catholic Diocesan Corporation.

According to the Special Permit application, dated December 29, 2021, the applicant seeks to establish Bellarmine College on the property. The proposed college would offer an Associate’s Degree and would be associated with Fairfield University, a Jesuit institution. However, the College would have its own faculty and its own Dean. All admitted students would be Pell Grant eligible.

You have informed Council Member Lyons, based on a brief email opinion authored by Attorney Russell Liskov that the Special Permit application scheduled for public hearing on April 11, 2022, has been withdrawn. You have further informed her, in light of Attorney Liskov’s email that the contemplated Bellarmine College can be located at 238 Jewett Avenue, without the necessity of a public hearing and the transparency that the hearing will provide.

You based this conclusion on the fact that the Jewett Avenue property was utilized by Notre Dame High School, beginning in the 1960s and ending in 1973. Attorney Liskov apparently believes that if the Diocese obtained a Special Permit in the 1960s enabling the High School to operate, no further approvals are required.

This analysis is flawed for several reasons.

A Special Permit, as I am sure that you are aware, allows a property owner to use his/her property in a manner which is expressly permitted by the applicable zoning regulations. A.P. &W. Holding Corporation v Planning and Zoning Commission, 167 Conn. 82, 85 (1984); Kobyluck v Planning and Zoning Commission 84 Conn. App. 160, 169-170 (2004).

A Special Permit must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique site specific conditions, including traffic problems, property values, and neighborhood uses.  Barbarino Realty and Development Corp. v Planning and Zoning Commission 222 Conn. 607, 612 (1992). A special permit may be denied based on enumerated general conditions, such as public health, safety and welfare. McLoughlan v Planning and Zoning Commission, (SC 20541, 2022), Whisper Wind Development Corp. v Planning and Zoning Commission, 229 Conn. 176, 177 (1994); St. Joseph’s High School v Planning and Zoning Commission 176 Conn. App. 570, 594 (2017).

Although a Special Permit, pursuant to Section 8-3d of the General Statutes must be recorded on the land records, and runs with the land, it cannot be utilized as a vehicle to allow a property owner to shoehorn into an R-A zone, a use which is not permitted in that zone.

It is significant, that Attorney Liskov, in his email, makes no reference to the Bridgeport Zoning Regulations applicable on December 29, 2021, the date on which the application was filed. Pursuant to those regulations, a “school” is a permitted use in an R-A zone, subject to the Special Permit process.

Those regulations in Section 6.4.6, define “school” to mean:

“Facilities which provide a curriculum of elementary and secondary instruction, including public and private kindergartens, elementary schools, junior high schools, and high schools, including magnet schools …

This definition would unambiguously apply to the former Notre Dame High School. Therefore, if a school use was proposed for the property and a valid Special Permit was issued, it could be argued that a Special Permit for Notre Dame High School, would allow for a similar institution to operate at 238 Jewett Avenue.

That case could be made, for example, if Fairfield University was inclined to transfer its Fairfield Preparatory School from its North Benson Road Campus, to Bridgeport. However, what the Diocese proposes for 238 Jewett Avenue is not a permitted use under the applicable zoning regulations.

The regulations in effect prior to January 1, 2022, Section 6.4.1, define colleges and universities as:

“Colleges and other institutions of higher learning, which offer courses of general or specialized study leading to a degree. They are certified by an accreditation agency.

Uses

Community Colleges

Liberal Arts Colleges

Nursing and Medical Schools not accessory to a Hospital

Seminaries

Universities

Colleges are permitted in some zones under those regulations, but are neither permitted nor allowed by a Special Permit in an R-A zone.

Therefore, the Special Permit allegedly issued to enable Notre Dame High School to operate and exist on the property does not provide authority for the proposed Bellarmine College. Furthermore, the Planning and Zoning Commission has no jurisdiction under those regulations to issue a Special Permit on behalf of a college or university seeking to operate in an R-A zone.

The distinction between “schools” and “colleges and universities,” has been carried forward into the new Bridgeport Regulations, Section 4.60.2A and 4.60.3B.

Both regulations make a common sense distinction between a high school and an institution of higher learning. This common sense distinction seems to have been ignored by the Diocese in its application to site Bellarmine College on Jewett Avenue.

Attorney Liskov seems to equate a Special Permit and a Variance in his terse opinion. Although both approvals may run with the land, they are otherwise unrelated.

A variance issued by a supermajority of a municipal zoning board of appeals, allows a property owner to use his property in a manner which is not allowed by the zoning regulations. Bloom v Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995).

A Special Permit, on the other hand, concerns a use of land permitted by the Zoning Regulations, but subject to site specific conditions. Municipal Funding LLC v Zoning Board of Appeals 270 Conn. 447, 457 (2004).

This attempt by the Roman Catholic Diocese, Fairfield University, (a Jesuit institution), Attorney Rizio, Mayor Ganim and his City Attorney, to accomplish through over the counter approvals, that which cannot be accomplished through the Special Permit process, must not be allowed to succeed.

This appalling abuse of power by agents of the Church and the Secular Government is particularly insulting during this Holy Season. Apparently it is acceptable to ‘virtue signal’ by ‘practicing piety before men,’ while engaging in back room machinations.

Thank you for your attention; a prompt reply is urged and expected.