• Superior Court
  • New London J.D., at New London
  • CV11-6009524
  • Sep 28 2012 (Date Decided)
  • Purtill, J.T.R.

A court can find that substantial evidence supports the conclusion that properties have merged, in part because the assessor taxes the properties as a single commercial property. Wal-Mart owns 14 acres in a commercial zone and 4 acres in a residential district in Groton. Wal-Mart Real Estate Business Trust applied to build a 40,000 square foot addition to a 119,829 square foot retail store, to permit Wal-Mart to sell groceries. In 2011, the Planning Commission of the Town of Groton approved the application. Stop & Shop Supermarket, a competitor which operates a grocery store in a shopping center located on the adjacent property, appealed. The court found that Stop & Shop was aggrieved, because increased traffic could interfere with the ability of tractor trailer trucks to enter an internal driveway.  Although Groton Square Corp. owns the internal driveway, and the Wal-Mart expansion will increase the use of that driveway, Groton Square did not file a motion to intervene to the commission or to the Superior Court. Stop & Shop failed to establish the commission lacked the power to consider Wal-Mart's site plan application without Groton Square Corp.'s consent. Although the abbreviation "LP" was mistakenly included on Wal-Mart's application, after Wal-Mart's name, there was no evidence the commission or Stop & Shop were misled. Numerous documents included the correct name. Absent prejudice, Stop & Shop failed to establish the planning commission lacked jurisdiction, as a result of the mistaken use of "LP." Stop & Shop also argued the 14-acre property is nonconforming, because impervious surfaces cover 78 percent (which exceeds the maximum of 70 percent in a water resource protection district), and that Wal-Mart should not be allowed to increase a nonconforming use. Wal-Mart objected that if the 14-acre and the 4-acre properties are considered together, as one property, both the current structure and the 40,000 square foot addition are in compliance. The assessor taxes the property as a single commercial property, and the planning commission considered the properties as merged. Substantial evidence supported the conclusion that the site plan application complied with the regulations, and the court dismissed the appeal.