On Jan. 25, in the second of its two decisions on the project, the Connecticut Appellate Court rejected a lawsuit by a citizens group, North Branford Citizens Against Bulk Propane Storage, to block the construction of a propane storage facility. The decision, which comes after an 11-year legal battle, may finally pave the way for the facility. The court found that the citizens group did not have legal standing to file its suit.
An Application for Connecticut Propane Storage Facility
The saga began in May 2014, when a company called 2772 BPR LLC filed an application with the North Branford planning and zoning commission for a zoning change to permit construction of a bulk storage facility in North Branford. Bulk storage of propane was a prohibited use under the town’s zoning regulations, and an exception was required. The applicant company appears to be owned by J.J. Sullivan Inc., a small, local, family-owned propane and fuel oil distributor.
The planned facility included two 30,000-gallon tanks, a garage, a connector building and an office building. Tanker trucks delivering propane to the storage tanks, as well as bobtail delivery trucks filling up to make customer deliveries, would have to traverse along a heavily traveled commuter route to access the facility.
Wetlands Review
In September 2014, following up on its zoning application, 2772 BPR submitted a site development plan application to the commission seeking approval to construct the facility. The commission held a hearing in October, but then suspended the proceeding pending a review by the state environmental agency of the impact of the facility on a local wetlands area.
More than two years later, in January 2017, that agency issued a decision in favor of 2772 BPR. In March 2017, the planning and zoning commission resumed its hearing.
The commission, by a 3-2 vote, denied 2772 BPR’s site plan application, and the company appealed to the Connecticut Superior Court, which denied the appeal. Undeterred, the company then went to the Connecticut Appellate Court, and in September 2021, that court reversed the lower court judgment, apparently clearing the way for the project.
Citizens Group Appears
But not so fast. Back in March 2017, while the zoning commission was holding its hearings on the 2772 BPR site plan application, a citizens group, North Branford Citizens Against Bulk Propane Storage, entered the picture. It filed its own lawsuit, naming as defendants the zoning commission, the town of North Branford, 2772 BPR and Town Councilman Donal Fucci.
The citizens group claimed that in 2014, Councilman Fucci and the town’s mayor attended a closed hearing of the zoning commission to lobby in favor of the project. Specifically, they wanted the commission to amend the town’s zoning regulations in a way that would facilitate the sale of a piece of property to 2772 BPR. It was on this property that the bulk storage facility was to be built.
Conflict of Interest?
It was alleged that Councilman Fucci had an interest in this property and stood to gain from its sale to 2772 BPR. (He strongly denied this.)
After two members of the commission voiced objections to the amendment, the town council, with Councilman Fucci voting in favor, voted to replace them. At the next meeting of the newly comprised commission on Aug. 7, 2014, the commission approved the amendment.
The plaintiff citizens group also claimed that the proposed facility would harm its members because it would “clog traffic on an already congested commuter road” and would “diminish property values due to the proximity of a potential boiling liquid expanding vapor (BLEVE) explosion.”
Dismissal & Appeal
In August 2023, the trial court dismissed the lawsuit. It did not address the substance of the citizens group’s claims but rather concluded that it “failed to exhaust its administrative remedies.” Specifically, the plaintiff did not file an appeal of the August 2014 zoning decision within 15 days, as required by Connecticut law. The plaintiff appealed to the appellate court.
The appellate court did not address the timeliness of the plaintiff’s appeal of the zoning decision. Instead, it asked whether the plaintiff citizens group had legal “standing” to file the lawsuit.
‘Standing to Sue’
The concept of legal “standing” has been much in the news lately. What does it mean? The courts will not allow a lawsuit by someone who dislikes an action but has no direct and personal stake in it. You cannot sue someone because you don’t like an action they took. You must have been actually harmed by that action.
The appellate court noted the plaintiff’s claim that it had standing:
“The sole plaintiff in the present case is an association of residents of the town. The plaintiff does not claim that it has standing on the basis that the plaintiff’s own interests were injured by the defendants’ actions; rather, the plaintiff claims that it has standing to vindicate alleged injuries to its members’ interests.”
Aggrieved?
The court stated that in this case, the plaintiff must show that at least one of its members was aggrieved by the zoning decision:
“…at least one of [the association’s] members [must have] an interest in the subject matter of the controversy that is distinguishable from that of the general public, and that it has suffered a direct injury to that interest.”
It concluded that the plaintiff association did not meet this burden, stating that “the complaint does not identify any of the plaintiff’s members or describe any member’s interest beyond the vague allegation that they reside in the town and oppose construction of the facility.”
Addressing the potential threat of a BLEVE explosion, the court stated:
“There is no allegation, for instance, that any member of the plaintiff owns or resides on property that is adjacent to or in close vicinity to the facility. Nor is there any allegation describing how likely it is that a BLEVE would occur, what would happen if a BLEVE did occur, how it would affect the surrounding area, or the extent of the area that would be affected. The allegations that the plaintiff’s members would suffer ‘[d]iminished property values due to the proximity of a [BLEVE]’ and ‘[a]nxiety’ due to the risk of a BLEVE, therefore, are too vague and uncertain to infer that any of the plaintiff’s members would be harmed in a manner that is distinguishable from the general public.”
Violation of Trust?
The court similarly rejected the claim that potential traffic congestion was a basis for the association’s standing to sue:
“Similarly, in the absence of any allegation that the plaintiff’s members either reside near or regularly travel through the area in question, the allegation that the defendants would be harmed by ‘[a]dditional traffic onto Foxon Road’ does not support an inference that the plaintiff’s members would be affected by such traffic any more than other members of the public who travel through the area.”
Finally, the court was not persuaded that Councilman Fucci’s alleged (and vigorously contested) “violation of the public trust” was enough to establish that association members were sufficiently aggrieved to have standing to sue:
“Accordingly, we conclude that the allegation that Fucci’s actions violated the public trust, without any allegation of how that violation affected the plaintiff’s individual members in a manner distinguishable from those in the community as a whole, was insufficient to establish that the plaintiff’s members were aggrieved.”
The court affirmed the dismissal of the lawsuit, and the plaintiff association has not appealed. After a tangled, 11-year legal battle, the way is finally clear for the bulk storage facility in North Branford, Connecticut. Perhaps the moral of the story is a commentary on our litigious times, and on one small, family-owned propane dealer’s persistence in clearing the many legal hurdles that stand in the way of development.
