The state Appellate Court has rejected a lawsuit by a North Branford citizens group seeking to block installation of a bulk propane storage facility in town, bringing an issue that has been pending for more than a decade a step closer to potential resolution.
In the decision, which was made public Friday, a unanimous three-judge panel of the Appellate Court affirmed a trial judge’s decision to dismiss the suit — but on different grounds.
The Appellate Court ruled that citizens group had failed to allege facts in its complaint that would permit a conclusion that it had legal standing to file the suit, which challenged an amendment to the town’s zoning regulations allowing the propane facility.
The North Branford Citizens Against Bulk Propane Storage has several remaining options. One is to ask the state Supreme Court to hear a further appeal of the case.
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But Peter C. White, the lawyer representing the group, said he is “not hopeful” that the state’s top court will agree to do so.
He suggested, however, that there may be other avenues the group can pursue. He said there was an issue as to whether the site plan for the facility complied with federal Occupational Safety and Health Administration requirements on propane storage.
White said a lot of people contributed to the citizens group, although it did not keep a membership list. More recently, he said, eight to 10 people have been involved in its decision making.
“A lot of people have gotten old or moved,” he said.
Property belonged to Town Council member
A company known as 2772 BPR LLC applied to North Branford’s Planning and Zoning Commission in May 2014 for the amendment to the zoning regulations. The company wanted to build two 30,000-gallon propane storage tanks on property at 40 Ciro Road.
“Trucks equipped with 10,000 gallon propane tanks would deliver propane to the facility, and smaller trucks would deliver propane from the facility to residential and commercial customers,” the decision says, reciting allegations from the complaint. “To get to the facility, the trucks would have to travel along Foxon Road, a heavily trafficked commuter route.”
At that time, the property at 40 Ciro Road belonged to Donald Fucci, who was a member of the Town Council, the citizens group’s complaint says.
The complaint alleges that Fucci and Anthony Candelora, then the town’s mayor, attended a “closed hearing” of the Planning and Zoning Commission to lobby for the change in the zoning regulations.
In June 2014, the complaint says, Fucci and Candelora “used their influence to replace two serving members of Planning & Zoning Commission who had voiced their objections and concerns to the change in the zoning regulations.”
In August 2014, the commission, “with the new members, approved the change in the regulation,” the complaint continues.
The complaint contends that Fucci acted to advance his personal financial interests.
In their formal answer to the complaint, the town and the Planning and Zoning Commission denied all the allegations related to the conflict-of-interest claim.
Likewise, Fucci’s lawyer, Timothy J. Lee, said Monday, “We deny those allegations. It’s not true.”
'Closed hearing' denied
Among other things, Lee denied the claim that Fucci and Candelora attended a “closed hearing” of the commission. He said it was a public hearing, “duly noticed” and open to any member of the public.
Bryan L. LeClerc, the lawyer representing the town and the commission, wrote in a brief filed with the Appellate Court, that Fucci “was not a member of the Commission. At best he was one of nine members of a Town Council appointing zoning commissioners.
“And, the vote challenged by the Plaintiff at the Commission passed by a margin of 5-0,” LeClerc continued. “Even if one were to exclude the votes of the two members referenced by the Plaintiff, the zone text amendment would have passed.”
The courts never ruled on the merits of the citizens group's suit.
Now-retired Judge Michael P. Kamp, who presided over the case in state Superior Court in New Haven, granted a motion to dismiss the suit on grounds that the group had failed to use all the “administrative remedies” available to it by failing to file a court appeal within 15 days of the commission’s action.
The Appellate Court agreed that the suit should be dismissed but based its decision on the conclusion that the citizens group lacked legal standing to sue because its complaint failed to allege specific interests on the part of any of its members different from those of the general public.
The citizens group’s suit is not the only thing that has delayed construction of the propane facility. The Planning and Zoning Commission in 2017 rejected the company’s plan for development of the site by a 3-2 vote, a decision ultimately reversed by the Appellate Court in 2021, according to the decision.
The new Appellate Court decision was written by Judge Robert W. Clark and joined by Judges Bethany J. Alvord and Dawne G. Westbrook.