Opinion
CV156019729S
04-20-2017
Sammy Alanz et al. v. Planning & Zoning Commission of the City of Shelton
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Moran, Judge Trial Referee.
The plaintiffs, Sammy Alanz, Stephen Miklos, and ACE Property, LLC, appeal from the decision of the defendants, Shelton Planning & Zoning Commission (the Commission) and Zoning Board of Appeals (ZBA), denying their application for a special exception permit for a full service restaurant.
The plaintiffs' appeals of both the Commission (Docket No. AAN-CV-15-6019729-S) and the ZBA (Docket No. AAN-CV-16-6020592-S) decisions have been consolidated pursuant to the filing of motions to consolidate.
On August 7, 2015, the plaintiffs filed an application with the Commission for a special exception permit as a high traffic activity generator. (P& Z ROR #1.) The application was for a full service restaurant and bar proposed to occupy the vacant portion of an existing multi-tenant commercial building located at 333 River Road in Shelton. On August 11, 2015, the Commission accepted the application at a regular meeting and a public hearing was scheduled. On September 23, 2015, the Commission conducted a public hearing on the application, and at the hearing, a letter from fire marshal James Tortora was introduced, which indicated that the required width for the fire truck lane had not been met and that for a building permit to be approved, a complete set of building plans must be submitted for review. (P& Z ROR #11.) The site consists of a 12, 516-square-foot parcel in a commercial district. (P& Z ROR #13.) The proposed restaurant contained 1, 343 square feet of gross floor area and 531 square feet of patron area. (P& Z ROR #22.) Seventeen parking spaces were provided in the revised site plan. (P& Z ROR #23.)
A second public hearing was held on October 27, 2015. At both hearings, neighbors and members of the committee expressed their concerns about the adequacy of the proposed parking and the potential of increased motor vehicle and pedestrian traffic. At the November 18, 2015 meeting, at which the Commission denied the plaintiffs' application for a special permit for a full service restaurant and bar, the Commission made the following findings:
(1) Arrangement of on-site parking and vehicular access are not conducive to the nature of the high traffic-activity that would result from the proposed use; (2) the nonconforming property cannot accommodate the size and intensity of the proposed use, resulting in inadequate on-site parking availability, especially during peak hours; (3) the vehicular traffic entering from and exiting to River Road would potentially create unacceptable adverse traffic impacts on the local street system and that off-site curb parking on area streets would result in pedestrian traffic on River Road, potentially creating severe safety issues; and (4) the proposed use would have a negative impact on property values and would potentially have a negative impact on the public safety and welfare.
Thereafter, the plaintiffs made demand on the Commission for a certificate of zoning compliance, pursuant to § 33.3. On December 15, 2015, the plaintiffs filed an appeal with the ZBA after the Commission denied their demand. On January 19, 2016, the ZBA held a public hearing and discussed the issue of timeliness of the Commission's decision. At its meeting on March 15, 2016, the ZBA denied the appeal, stating that the Commission and ZBA follow the time frames provided in the General Statutes, not the Shelton regulations (the regulations).
Section 33.3 provides that " [f]ailure of the . . . Commission to so act on any complete application within 90 days after receipt shall be considered an approval, and a certificate to that effect shall be issued with an approved Application for a Certificate of Zoning Compliance by the . . . Commission upon written demand by the applicant received within 30 days after the expiration of the 90-day period for application."
On December 7, 2015, the plaintiffs filed an appeal with this court against the Commission, and on April 6, 2016, filed an appeal against the ZBA. After the two cases were consolidated, the plaintiffs filed a brief in support of their appeal on September 7, 2016. The defendants filed a brief in opposition on October 6, 2016. The plaintiffs argue the following:
(1) The application was automatically approved in accordance with § 33.3 of the regulations in that the Commission failed to act on the application within the applicable time frame; (2) section 5.18 of regulations is unconstitutionally void for vagueness in that it permits the Commission to vary its own parking requirements with no definitive standard and thereby denied the plaintiffs the ability to know the standards governing its application; (3) the reasons given by the Commission for the denial of the application are not supported by substantial evidence in the record; and (4) the decision of the ZBA to deny the appeal was illegal, arbitrary, and contrary to law.
The court heard oral argument on November 3, 2016.
" [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). " As a jurisdictional matter, an appellant must demonstrate aggrievement to maintain an administrative appeal. Aggrievement is essentially a question of standing; without it, a court must dismiss an action for want of jurisdiction." Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001). " Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Citations omitted.) Id. Here, the plaintiff is aggrieved because he has an interest in the property at issue and the agency's decision denying the application affects his legal interest.
" [A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court." General Statutes § 8-8(b).
" In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision. (Citations omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993).
I
The plaintiffs' first issue on appeal is whether the ZBA's decision to deny the appeal of the plaintiff's request for a certificate of zoning compliance was illegal, arbitrary, and contrary to law. Specifically, the plaintiffs argue that their application was automatically approved in accordance with § 33.3 of the regulations when the Commission failed to act on the application within the time frame provided in that section. The plaintiffs further argue that the regulations apply to their case rather than General Statutes § 8-7d(a) because the area of planning and zoning has not been preempted by statute, and the fact that the regulations specify a shorter time frame to act does not conflict with the purpose or requirements in § 8-7d. The defendants contend that the relevant time limitations found in § 8-7d apply and not those in § 33.3. They further contend that the existence of the time limitation in § 8-7d(a), as well as in other statutes in the same chapter, indicates that the legislature intended to apply a uniform scheme of notice and time frames throughout land use agencies.
Courts " interpret and construe local ordinances according to the principles of statutory construction." (Internal quotation marks omitted.) Blakeman v. Planning & Zoning Commission, 82 Conn.App. 632, 639, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004). " A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Internal quotation marks omitted.) Id.
Section 33.3 of the regulations provides in relevant part: " Upon receipt, the Zoning Enforcement Officer shall transmit the Special Exception application and Application for a Certificate of Zoning Compliance to the Planning and Zoning Commission. He shall also transmit a copy of the Special Exception Application to the Planning and Zoning Commission . . . Failure of the Planning and Zoning Commission to so act on any complete application within 90 days after receipt shall be considered an approval, and a certificate to that effect shall be issued with an approved Application for a Certificate of Zoning Compliance by the Planning and Zoning Commission upon written demand by the applicant received within 30 days after the expiration of the 90-day period for action . . ."
General Statutes § 8-7d(a) provides in relevant part: " In all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter . . . and a hearing is required or otherwise held on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences, unless a shorter period of time is required under this chapter . . . All decisions on such matters shall be rendered not later than sixty-five days after completion of such hearing . . ." Both § 8-7d and § 33.3 provide a set period of time in which the Commission must act in either granting or denying an application. The main difference, however, between the two provisions is that the regulations provide for an automatic approval of the application if the Commission does not act within the specified time frame.
Section 8-7d(c) provides in relevant part: " For purposes of subsection (a) or (b) of this section and section 7-246a, the date of receipt of a petition, application, request or appeal shall be the day of the next regularly scheduled meeting of such commission, board or agency, immediately following the day of submission to such commission, board or agency or its agent of such petition, application, request or appeal or thirty-five days after such submission, whichever is sooner." Thus, the date the application was received was on August 11, 2015.
Whether § 33.3 or § 8-7d applies depends on whether the legislature intended to occupy the field of time frames for land use agency decisions. " [I]n determining whether a local ordinance is preempted by a state statute, we must consider whether the legislature has demonstrated an intent to occupy the entire field of regulation on the matter or whether the local ordinance irreconcilably conflicts with the statute." Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 119, 774 A.2d 969 (2001); see also Parillo Food Group, Inc. v. Board of Zoning Appeals, 169 Conn.App. 598, 611, 151 A.3d 864 (2016). " Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives . . . Therefore, [t]hat a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through the enactment of an ordinance, so long as there is no conflict with the state legislation . . . Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner." (Citations omitted; internal quotation marks omitted.) Modern Cigarette, Inc. v. Orange, supra, 256 Conn. 119.
In 2003, the legislature amended § 8-7d to include time periods in subsections (a) and (b) regarding extensions of time for the board to file its decision and the time in which a decision is to be made on an application for subdivision approval. Public Acts 2003, No. 03-177, § 5. The legislative history surrounding this amendment shows that the addition of the time frames served to provide consistency and uniformity among the various municipal land use agencies. During House proceedings, one representative stated that " planning commissions, zoning commissions, zoning boards of appeal, and inland/wetland agencies currently all have slightly different administrative review processes. These differences often cause confusion and unnecessary mistakes on the part of applicants and local officials. This bill standardizes the time frames that local use boards and commissions must use to act upon applications and the notification requirements that they must follow for hearings that they hold to review those applications." 46 H.R. Proc., Pt. 11, 2003 Sess., p. 3588. Similarly, the proposed amendment to § 8-7d " would provide uniformity and consistency throughout the various municipal land use statutes concerning the procedures for making referrals to other agencies, notice and holding public hearings, rendering decisions, and making regulations." Conn. Joint Committee Hearings, Planning and Development, Pt. 3, 2003 Sess., p. 839. Furthermore, " amending the statutes to provide for such uniformity will accomplish several important goals . . . [I]t will untangle the unnecessarily cumbersome variety of time frames for notice, decisions and appeal periods for the various municipal land use agencies." Id., p. 913.
" Where, as here, the special permit application necessarily must contain a site plan, that fact, by itself, does not trigger automatic approval of either the special permit or its accompanying site plan, pursuant to § § 8-3(g) and 8-7d, when the commission does not meet the time limits set forth by § 8-3c(b). Automatic approval would negate the meaning that we have long attached to the concept of a special permit. By virtue of its unique status, a special permit for a purpose not permitted as of right necessarily must be considered by a town's planning and zoning commission. It would be folly for a party to escape the categorization of a special permit merely because of bureaucratic error. Such a draconian result is unwarranted and unreasonable in that the public--and the environment--are those that possibly would suffer from such an outcome." (Footnote added.) Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183, 194-95, 757 A.2d 1052 (2000).
General Statutes § 8-3c(b) provides in relevant part: " The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g. Such hearing shall be held in accordance with the provisions of section 8-7d. The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. Such commission shall decide upon such application or request within the period of time permitted under section 8-7d."
In the present case, both § 33.3 and § 8-7d provide different time frames. It is apparent from the legislative history that the legislature intended that there be one uniform time frame that applies to all municipal land use agencies regarding the decision making process. Moreover, courts are weary to allow automatic approval of special exception permits. Thus, § 8-7d applies rather than Regulation 33.3 because the last hearing was held on October 27, 2015, and the Commission released its decision on November 18, 2015, the Commission was within the sixty-five-day time limitation.
II
The plaintiff next argues that § 5.18 of the regulations is unconstitutionally void for vagueness because it " takes a permitted use by site plan approval (restaurant) and turns it into a special exception use upon which of the defendant Commission can increase the parking standards established in its regulations." The plaintiff also argues that nothing in the regulations gives the Commission the power to vary the parking regulations as enumerated in § 42. Specifically, the plaintiffs argue that while § 42 states that the parking " standards are a `minimum, ' there are no standards or criteria in the regulations to permit the defendant Commission to act in accordance with standards to increase the amount of parking required by the regulations." In response, the defendants argue that the Commission has the right to examine any traffic or parking problems and determine how the site plan and layout of the building affects traffic flows. Furthermore, the parking standards set forth in § 42 are " minimum numbers and there is no statement of what must be accepted where special exceptions allow for discretion by the Commission."
It appears from the plaintiffs' brief that they are making two arguments: First, that § 5.18 is void for vagueness because it requires one to search the entire regulations to discover that what appears to be a permitted use actually requires a special exception permit, and second, that the parking space requirements do not provide for a standard in determining how many spaces are needed for a site plan. At oral argument the plaintiff argues that § 5.18 is vague because " no applicant for a restaurant would know what number of parking spaces it has to comply with because there are no standards and unfettered discretion."
The plaintiff further argues that an applicant must take a " long and winding journey" to discover that a permitted use of a restaurant requires a special exception permit. First, § 5.18 provides: " High traffic-activity generators include, but are not limited to, gas stations, convenience stores, grocery stores and any food service establishment whose principal business is the sale of foods and beverages in a ready-to consume state at a counter for consumption at the restaurant or for take-out, as well as any use which generates more than ten (10) trips per 1, 000 square feet of floor area at peak hour (per the latest edition of the Institute of Transportation Engineers Trip Generation reference)." Second, the plaintiff points to § 23.1 which provides that certain restaurants and other food service establishments in a CA-2 district is " a use permitted in the district, subject to submission and approval of a Site Plan in accordance with the provisions of SECTION 31." Third, § 33.1 then explains that " [i]n accordance with the procedures, standards and conditions hereinafter specified, the . . . Commission may grant Special Exceptions for the establishment of one or more of uses for which a Special Exception must be secured from the Commission as specified in SCHEDULE A--PERMITTED USES . . ." Section 33.2.1 then requires " [a] written statement describing the proposed use in sufficient detail to determine compliance with the permitted use provisions of SECTION 23 . . . (d) Any proposal that may be deemed a high-traffic-activity generator as defined in Section 5 Definitions . . ." Fourth, § 42 states: " Off-street parking spaces shall be provided in accordance with the following minimum standards." (Emphasis omitted.) Under this section, restaurants require one parking space for each one hundred square feet of gross floor area plus one additional space for each 50 square feet of patron bar and/or cocktail lounge area.
" [T]he burden of showing that regulations are unconstitutionally vague rests with the plaintiff . . . Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case." (Internal quotation marks omitted.) Ogden v. Zoning Board of Appeals, 157 Conn.App. 656, 669, 117 A.3d 986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015). Furthermore, " [t]o demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [plaintiff] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties." (Internal quotation marks omitted.) Id.
" A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly . . . A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity." (Internal quotation marks omitted.) Bethlehem v. Acker, 153 Conn.App. 449, 471-72, 102 A.3d 107, cert. denied, 315 Conn. 908, 105 A.3d 235 (2014).
" In order to pass constitutional muster, a zoning ordinance need not contain detailed and rigid standards that anticipate every conceivable factual situation. Indeed, we have recognized that detailed standards within a zoning ordinance that may be impractical or impossible to apply are not necessary, and that some flexibility is permitted when one standard cannot be adopted to all situations." Campion v. Board of Alderman, 278 Conn. 500, 526, 899 A.2d 542 (2006).
Here, the essence of the plaintiffs' argument is that § 5.18 does not state that a restaurant requires a special permit, and as a result, an applicant must search the entire regulations to discover this. When construing a zoning regulation, however, courts " ascertain and give effect to the intent of the local legislative body as expressed in the regulation as a whole ." (Emphasis added.) Carr v. Bridgewater, 224 Conn. 44, 57, 616 A.2d 257 (1992). The plaintiffs are not attacking a specific portion of § 5.18 as vague, but rather, that he was not given proper notice of the amount of parking spaces that were required. They argue that no mention is made in § 5.18 that a use that is " High Traffic Activity Generator" requires a special exception approval. Further, they argue that nothing in the regulations gives the Commission the power to vary the parking regulations as enumerated in § 42. However, there is no mention of parking spaces in § 5.18, but rather § 42.2. Thus, the plaintiffs have not met their burden in showing that the regulation was vague and thus unconstitutional.
III
The plaintiffs' third issue on appeal is whether the Commission's decision was based on substantial evidence of the record. The plaintiff first argues that the evidence before the Commission was that the parking provided by the plaintiffs complied in number with the standard in § 42.2, and that the Commission " did not cite to any specific evidence in its attempt to increase the parking standard." Second, the plaintiff argues that the Commission's claim that the traffic from the proposed restaurant would create adverse impacts " amounts to pure speculation, because there is no evidence in the record to support such a conclusion." Third, the plaintiffs argue that there are no facts in the record to support the proposition that the proposed restaurant would adversely impact property values. The defendants contend that, regarding parking spaces, the regulations call for a " minimum" number of spaces and the Commission can determine the number of parking spaces needed to adequately serve the intent of § 42. Regarding the plaintiffs' other arguments, the defendant claims that there is sufficient evidence in the record to support the finding that the proposed restaurant would negatively impact traffic and property values of surrounding property.
" The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [i]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987).
" The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Parillo Food Group, Inc. v. Board of Zoning Appeals, supra, 169 Conn.App. 604.
At the outset of the Commission hearing on September 23, 2015, a letter from James M. Tortora, Fire Marshall, City of Shelton, to Rick Schultz, Planning & Zoning Administrator, was read into the record.
The letter reads as follows:
Dear Rick, After a review of the site plan for the proposed restaurant occupancy to be located at 333 River Road, the following shall apply:
One: Where applicable, all access roadways are considered fire lanes and shall be maintained at 24 feet clear width throughout the complex and in accordance with city ordinances and application regulations. The conceptual plan shows the width of the entrance driveway at 23 feet when in fact by the scale shown, 1 inch equals 20 feet, the width is over 40 feet. Assuming the scale is 1 inch equals 20 feet, the required width is not met.
These deficiencies in the site plan were noted on the record.
Prior to the next scheduled meeting of the Commission the applicant filed an " Improvement Location Survey" dated September 21, 2015.
Further analysis and review of the site plans continued at the next scheduled meeting of the Commission held on October 27, 2015.
Again, at the outset of said meeting, a letter dated October 23, 2015 from Robert F. Kulacz, P.E., City Engineer, to Richard D. Schultz, Planning & Zoning Administrator, City of Shelton, was read on the record. This letter reads as follows:
Re: Ace Property, LLC, 333 River Road:
1) Improvement Location Survey dated September 21, 2015
2) Traffic Impact Study dated October 22, 2015
Dear Mr. Schultz:
This office has reviewed the above referenced survey that details the present site layout including the parking lot. The following deficiencies were noted:
Parking space #12 blocks access to the two dumpsters.
The parking lot aisle lane width is deficient. The minimum required aisle width is 24 feet while only 21 feet is provided.
The fire lane width is deficient. The required fire lane is 26 feet while only 21 feet is provided.
Based upon the site restrictions, this office does not endorse the use of the parcel for a restaurant/bar.
Very truly yours,
Robert F. Kulacz, P.E. City Engineer
cc: James Tortora, Fire Marshall
Again, these deficiencies were noted on the record. A careful review of the record fails to disclose that the deficiencies were corrected or otherwise resolved.
Thus, the site plans failed to comply with the Shelton Planning & Zoning Regulations' minimum requirements.
This reason alone supports the decision of the Shelton Planning & Zoning Commission dated November 18, 2015.
However, the Commission also analyzed and reviewed the site plans, subject property, and proposed restaurant/bar.
In its Report/Resolution dated November 17, 2015, it is noted that the proposed handicapped space does not conform to the statutory requirements for a minimum width of 15 feet, including a 5-foot cross-hatch safety zone.
It further noted an encroachment into the required 12-foot buffer required along a Residence District Boundary Line. In order to resolve this encroachment, a variance would have to be granted by the Shelton Zoning Board of Appeals.
Again, it is determined that the Site Plans for the proposed restaurant/bar are noncompliant with the Shelton Planning & Zoning Regulations.
The configuration of the parking arrangement was problematic as the aisle " in" is a dead end which could lead to backing " out" onto the River Road, creating potential traffic hazards.
The said Report/Resolution also reflected the concerns of the neighbors in the immediate area of the subject property. A review of the record for both the September 23, 2015 and the October 27, 2015 of the Commission is replete with many, many complaints and concerns voiced by these neighbors.
These complaints and concerns include adverse traffic and parking in the neighborhood, safety concerns for pedestrians and patrons of the proposed restaurant/bar, noise and lighting issues, negative impact on property values, quality of life issues especially as it may affect their children, potential trespass on nearby properties, absence of sidewalks, late night activity, and public health.
In addition, a petition signed by 141 residents in opposition to the proposed restaurant/bar was submitted to the Commission.
The findings and conclusions of the Commission of Shelton are well founded and legally sound and based on substantial evidence sufficient to support its decision to deny the plaintiffs' application for a special permit.
The plaintiff's appeal from the decision of the Shelton Planning & Zoning Commission denying its application Special Exception/Site Plan Approval Restaurant and Bar is dismissed.
In view of the fact that this court has ruled that § 8-7d preempts the Shelton Zoning Regulations, this court finds that the Shelton Zoning Board of Appeals acted legally in denying the application of the plaintiff for a certification of Zoning Compliance.
The Shelton Zoning Board of Appeals also found that the plaintiff's site plans were noncompliant with the Shelton Planning & Zoning Regulations.
The plaintiff's appeal from the decision of the Shelton Zoning Board of Appeals denying its application for a Certificate of Zoning Compliance pursuant to § 33.3 of the Shelton Planning & Zoning Regulations is dismissed.