Retired Superior Court Judge Carmen Lopez, on behalf of two city residents including City Councilwoman Michelle Lyons, has submitted a notice of appeal to the Zoning Board of Appeals challenging Zoning Administrator’s Dennis Buckley’s decision, backed by the city’s legal counsel, allowing Fairfield University to locate a two-year college on property owned by the Diocese of Bridgeport in the North End.
Neighborhood leaders, including Lyons, oppose the plan citing traffic and congestion concerns that would devalue area properties.
If ZBA doesn’t reverse this decision, is state court next?
Cover letter of appeal follows:
This appeal is addressed to the Bridgeport Zoning Board of Appeals, pursuant to Section 8-6 (a) (1) of the General Statutes. The statute reads:
“The Zoning Board of Appeals shall have the following powers and duties:
— To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter, or any law, ordinance or regulation adopted under the provisions of this chapter …”
The undersigned, on behalf of Michelle Lyons of 91 Jewett Avenue in Bridgeport, and Lisa Williams of 488 Peet Street, Bridgeport, files this Notice of Appeal pursuant to Section 8-7 of the General Statutes. The appeal concerns an “order, requirement, or decision” issued by Bridgeport Zoning Administrator and Zoning Enforcement Officer Dennis Buckley.
The “order, requirement, or decision” in question was rendered on March 30, 2022. It is contained in an email from Mr. Buckley to Bridgeport City Council Member Lyons. The email also contains a two-paragraph legal opinion provided by Attorney Russell Liskov, to which Mr. Buckley refers (Ex. 1).
It is unclear whether Attorney Liskov issued his brief opinion on his own initiative, or following consultation with Attorneys representing the Bridgeport Roman Catholic Diocesan Corporation, the law firm of Russo & Rizio.
In order to provide proper context, background information and explanation must be included in this appeal.
On December 29, 2021, the Bridgeport Roman Catholic Diocesan Corporation, which owns 238 Jewett Avenue, in fee, submitted a Special Permit Application to the Bridgeport Planning and Zoning Commission. The application sought permission to establish, in an existing building “a new Bellarmine College to offer an Associate’s Degree,” in conjunction with Fairfield University (Ex. 2).
The Special Permit application explains that the proposed college would have its own “dedicated faculty, administrative support and Dean,” along with a “two-year Associates Degree curriculum.”
The Roman Catholic Diocese elected to file its Special Permit Application prior to January 1, 2022, the date on which the current Bridgeport Zoning Regulations took effect. Therefore, the application is governed by the Regulations that were in effect in December of 2021. Pursuant to those Regulations, 238 Jewett Avenue is located in a Residential R-A Zone.
238 Jewett Avenue was once the site of Notre Dame Girls High School. This use of the property ceased in the early 1970’s and the building has not been used as a high school for nearly fifty (50) years.
In January of 2022, the Bellarmine College application was the subject of a Concept Review performed by Bridgeport’s Office of Planning and Economic Development (OPED). The prior use of 238 Jewett Avenue was discussed. A memo from Design Review Coordinator, Jackson Strong, and dated January 19, 2022 declares (Ex. 3):
“(3) We discussed whether there is a preexisting approval for a school use. Upon review, It does not appear that any preexisting approvals relating specifically to a school use Exist.”
However, notwithstanding both the OPED review, and a scheduled public hearing concerning the requested Special Permit, Attorney Liskov, without citing any controlling Special Permit, opined on March 29, 2022 that a Special Permit was not necessary and the property could be used “as of right” for the proposed college.
The following morning, via email, Mr. Buckley informed Council Member Lyons, “the City Attorney has determined that the Catholic Center may re-establish an educational use at 238 Jewett as it was once NDHS-Girls Campus. It will be withdrawn from the P & Z Agenda. I know that this is not the outcome that you were hoping for, but we have to follow the direction of the City Attorney.”
On April 4, 2022, a letter was served in hand to Mr. Buckley. The letter challenged Attorney Liskov’s opinion and reviewed the Regulations applicable to the R-A Zone (Ex.4).
As the April 4 letter states, a “school” is a permitted use in an R-A Zone, subject to the issuance of a Special Permit. Section 6.4.6 of the Regulations, defines schools to mean:
“Facilities which provide a curriculum of elementary and secondary instruction, public and private kindergartens, elementary schools, and high schools, including magnet schools.”
The applicable Bridgeport Regulations, define “Colleges and Universities,” in Section 6.4.1:
“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.”
Liberal Arts Colleges
Nursing and Medical Schools not accessory to a hospital
What is proposed for 238 Jewett Avenue, consistent with any reasonable reading of the Regulations, is a college, not a school.
Mr. Buckley replied to the April 4 letter by acknowledging that he had referred the communication to the City Attorney. He offered no further information or clarification concerning his March 30, email (Ex. 5).
As a follow up to Mr.Buckley’s response, a letter dated April 11, 2022, was hand-delivered to Attorney Liskov, Mr. Buckley and OPED.
Attorney Liskov was asked to provide a copy of the recorded Special Permit upon which he relied in his opinion (Ex. 6).
Attorney Liskov has not responded to this letter, and no Special Permit which would justify the opening of Bellarmine College has been discovered.
It is our position that even assuming, arguendo, that a prior Special Permit for a school exists, that approval cannot be transformed into an approval for a college.
Any such finding, would transform a permitted use into a non-conforming use, through over the counter maneuvers, designed to avoid the transparency mandated by the public hearing process.
Zoning regulations do not permit non-conforming uses, such as a college in an R-A Zone, to be established, either through the Special Permit process, or through private over-the-counter machinations.
The Appellants look forward to a full public hearing before the Bridgeport Zoning Board of Appeals.
When it hears an Appeal following a decision by a municipal zoning official, a Zoning Board of Appeals sits in a quasi-judicial capacity. Caserta v Zoning Board of Appeals, 226 Conn. 80, 87-88 (1993). Any appeal must be decided de novo. Therefore the action of the Zoning Enforcement Officer is not entitled to any deference or any presumption of validity. Woodbury Donuts, LLC. V Zoning Board of Appeals, 139 Conn. App. 748, 757-758 (2012).
The Appellants ask that the decision of Zoning Official Dennis Buckley, which was entered in reliance upon the opinion of the City Attorney, be reversed.
We further ask that the Bridgeport Zoning Board of Appeals make the following findings:
1. No preexisting use of 238 Jewett Avenue permits the property to be used as the proposed Bellarmine College.
2. A college is not a permitted use in a Residential R-A Zone in the Bridgeport Regulations applicable at the time that the Special Permit application was filed by the Roman Catholic Diocesan Corporation.
3. 238 Jewett Avenue was last used for a “school” in the 1970’s, when Notre Dame Girls High School ceased to operate on the property.
4. No prior approval as a “school” or educational use of 238 Jewett Avenue, which specifically authorizes a “school use” exists.
5. The application for a Special Permit filed by the Roman Catholic Diocesan Corporation seeks authorization for a “college,” not a “school,” as those terms are defined in the applicable Bridgeport Regulations.