Opinion
No. FST CV 06 4009913 S
August 28, 2008
MEMORANDUM OF DECISION
Background
The above case was consolidated as of December 12, 2007 with the cases of Jo Ellen Gerstenmaier Ally v. Weston Planning Zoning Commission, Docket No. 07-4012740S and Aspetuck Valley Country Club v. Weston Town Planning Zoning Commission, Docket No. 07-4012714S.
The cases all revolve around the initial denial of an application made by the Aspetuck Valley Country Club, Inc. (Country Club) and its related entity Old Redding Road, LLC to replace its 40-year-old pool facility. In 2006, the Planning Zoning Commission of the Town of Weston (the Commission) turned down a plan (First Application) submitted by the Country Club that would have positioned the new pool on the two-acre parcel which abuts the home of Jo Ellen Gerstenmaier Ally (Mrs. Ally). The Country Club appealed the denial.
A Second Application was submitted by the Country Club in July of 2007. The proposal included the use of a parking area. After public hearings were held, the Commission approved the Second Application with several conditions on September 24, 2007.
Both Mrs. Ally and the Country Club have appealed the Commission's decision.
Law
It is the plaintiff's burden to prove aggrievement. General Statutes § 8-8(a); Fox v. Zoning Board of Appeals, 84 Conn.App. 628, 638, 854 A.2d 806 (2004).
It is well settled that the burden of overthrowing the decision of an administrative board rests squarely upon the plaintiff. Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 646, 136 A.2d 789 (1957). On an appeal from a zoning authority's action, the plaintiff has the burden of proof to show that the authority acted improperly. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265-66, 455 A.2d 339 (1983); Bora v. Zoning Board of Appeals, 161 Conn. 297, 300, 288 A.2d 89 (1971); Chouinard v. Zoning Commission, 139 Conn. 728, 731, 97 A.2d 562 (1953). When the evidence shows that the commission had an adequate basis for its decision, "the conclusion must be drawn that its action was within its powers and should be sustained." Van De Mark v. Board of Zoning Appeals, 1 Conn.Sup. 89, 90 (1935).
It is the role of the Superior Court, when an appeal is taken, to review the record to determine whether the Commission acted properly in the exercise of its functions and not to substitute its judgment for the judgment of the zoning authority. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540, 271 A.2d 105 (1970). A court's review of a zoning decision is based on the record, which properly includes knowledge which zoning board members gain through personal observation of the site or personal knowledge of the area involved. Oakwood Development Corp. v. Zoning Board of Appeals, 20 Conn.App. 458, 460, 576 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).
It is well settled in Connecticut that the decisions of zoning authorities are afforded great deference, and they are to be overruled only when it is found that the authority had not acted fairly, with proper motive and upon valid reason. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 2177 (1953); Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668 (1952). "Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority. Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538 (1952)." (Internal quotation marks omitted.) McMahon, supra, 140 Conn. 438. The court may only grant relief on appeal if it finds that the local zoning authority acted illegally, arbitrarily or in an abuse of its discretion. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 391 A.2d 180 (1980); Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982).
An administrative appeal to the court does not require or permit the court to review evidence de novo, or to substitute its findings and conclusions for the decision of the zoning authority. Verney v. Planning Zoning Board of Appeals, 151 Conn. 578, 580, 200 A.2d 714 (1964). The sole question is whether the authority acted legally and within its discretion. Lindy's Restaurant, Inc. v. Zoning Board of Appeals, 143 Conn. 620, 622, 124 A.2d 918 (1956). If the zoning authority's decision is reasonably supported by the evidence in the record, the reviewing court is not able to disturb that decision on appeal. Dora v. Zoning Board of Appeals, 161 Conn. 297, 300, 288 A.2d 89 (1972). "The credibility of witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 298 Conn. 498, 513, 636 A.2d 1342 (1994).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . ." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). This principle applies whenever the "the agency has rendered a formal, official, collective statement of reasons for its action." Id. Furthermore, the agency's decision must be upheld if even just one of the reasons given for denial is supported by substantial evidence. Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
"Where the zoning [agency] has not stated the reasons for its decision . . . the court must search the entire record to find a basis for the board's decision . . ." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511 (2004).
In evaluating an application for a special permit, an agency is governed by its own regulations, A.P. W Holding Corp. v. Planning Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974), and by Title 8 of the Connecticut General Statutes. Generally, a special permit allows an owner to put its property to use in a manner which is expressly permitted under the zoning regulations upon the issuance of a special permit. Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 353, 232 A.2d 916 (1967); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 177.
General Statutes § 8-2(a) provides that the "obtaining [of] a special permit or special exception . . . [is] subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, and convenience and property values."
"Thus, in accordance with § 8-2(a) an applicant's obtaining of a special exception pursuant to a zoning regulation is subject to a zoning commission's consideration of these general factors . . ." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 455 (2004).
Section 330 of the Zoning Regulations of the Town of Weston (Regulations) addresses Special Permit Approval.
Section 332.1
The proposed use will serve a community need or convenience.
Section 332.2
The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, the size of the site in relation to it, and the location of the site with respect to streets giving access to it, are such that it will be in harmony with the appropriate and orderly development of the district in which it is located.
Section 332.3
The location, nature and height of building structures, walls and fences and the nature and extent of landscaping, screen plantings and exterior illumination on the site, are such that the use will not hinder or discourage the appropriate use and development of adjacent land and buildings, or impair the value thereof.
A zoning board is entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application. Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165, 556 A.2d 1049 (1989).
A commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values. United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003).
Factual Background
The Country Club is located on the east and west side of Old Redding Road in Easton and Weston, Connecticut. It is comprised of 140 acres. (Return of Record [ROR], Exhibit [Exh.] 23.) 109.16 acres of that parcel are located in a residential zone in Weston, with an address of 67 Old Redding Road (the "Original Property"). (ROR, Exh. 23.) Defendant Aspetuck Valley Country Club owns the Original Property and has operated the Country Club there since 1967. (ROR, Exh. 2b at 1-2.)
Defendant Old Redding Road, LLC is a limited liability company wholly owned by the Country Club. The LLC owns property located at 47 Old Redding Road, Weston, Connecticut (the "Newly Acquired Property"). (ROR, Exh. 2b at 1.) The Newly Acquired Property consists of two acres and is adjacent to the Original Property. The Newly Acquired Property is also located in a residential zone. (ROR, Exh. 23.) Mrs. Ally owns residential property adjacent to the Newly Acquired Property. (ROR, Exh. 23.)
The Country Club previously filed an application seeking approval for the construction of a new pool and pool house on the Newly Acquired Property (the "First Application"). (ROR, Exh. 4.) The Commission denied the First Application for the following reasons:
1. Construction of a proposed pool on the Newly Acquired Property does not serve a community need or convenience.
2. Conversion of the Newly Acquired Property to an active recreation, sport, pool and dining facility is not in keeping with the residential character of the neighborhood.
3. Other options for a new pool exist on the current acreage of the Country Club. The existing pool can be renovated in the same location.
4. Since the proposed use does not serve a community need or convenience, the use is not in harmony with the appropriate and orderly development of the residential district in which the property is located.
5. The proposed use will impair the value of the adjacent residential property.
(ROR, Exh. 1b.)
In July 2007, the Country Club filed the Second Application, seeking permission to construct a new pool and pool house, parking facilities, and a new cart and storage barn. (ROR, Exh. 4.) In response to the Commission's stated reasons for denial of the First Application, the Second Application proposes that the new pool and pool house be constructed in the same location as the existing pool on the Original Property, and that the Newly Acquired Property be used solely for a parking area. (ROR, Exh. 2a at 1 4.) The Second Application also calls for the removal of an existing nonconforming cottage on the Newly Acquired Property. (ROR, Exh. 4.)
Currently, the pool is 437 feet from Mrs. Ally's property. Mrs. Ally's proposal is for the pool to be 490 feet from her property. (ROR, Exh. 2b at 6.) The pool also will be located 100 feet farther away from Ally's property than called for by the proposal set forth in the First Application. (ROR, Exh. 2b at 8.)
The Commission held public hearings on the Second Application on July 9, 2007, July 23, 2007 and September 10, 2007. (ROR, Exhs. 2a-2g.) Various witnesses testified, among them David Bareski (Bareski), a landscape architect, testified on behalf of the County Club. Bareski explained that there will be extensive landscaping and other buffers between the parking area and Ally's property. Additionally, the parking area will be constructed with eco pavers. These will give a green cast to the parking area, making it appear like a lawn. (ROR, Exh. 2b at 4; Exh. 2f at 4-5.) John Fallon ("Fallon"), the Country Club's attorney, also stated that the Club is committed to providing additional buffering for Ally, and will even provide it on her property if she desires. (ROR, Exh. 2f at 4.) With the screening provided, the parking area will not be visible from Old Redding Road or Ally's property. (ROR, Exh. 2f at 9.)
Christopher Kerin ("Kerin"), a licensed real estate appraiser, testified on the Country Club's behalf as well. Kerin stated that the parking area will not negatively impact the value of Ally's property. (ROR, Exh. 2c at 5-6; Exh. 2f at 13.) Kerin explained that his original impact study addressed the concern with the parking area because he considered properties that had pools with parking lots adjacent to them. Kerin provided a supplemental study. He compared the values of homes with views of parking lots to similar homes with no such views and found that the parking lots had no inverse impact on value. Kerin also explained that his studies are limited by the market. Kerin further discussed the differences between his credentials as a real estate appraiser, and the credentials of Mrs. Ally's expert as a real estate broker. The former is specifically trained to value real estate whereas the latter has no such formal training. (ROR, Exh. 2f at 12-13.)
Fallon stated that the new pool is needed to provide a safe environment for adults and children, and to meet existing safety code requirements. The existing pool does not meet those requirements and could not be built today. (ROR, Exh. 2b at 7.) The additional parking is also required to improve safety because there are certain "peak activities" where overflow on-site parking is necessary to keep cars off the street. (ROR, Exh. 2b at 8.) The parking area will be more conforming to current regulations as it will provide 88 net additional parking spaces. (ROR, Exh. 2b at 3.) It will cover about 30% to 40% of the Newly Acquired Property. (ROR, Exh. 2f at 10.)
Fallon pointed out that the cart barn will be an aesthetic enhancement because it will allow all golf equipment and carts to be stored internally. (ROR, Exh. 2b at 7; Exh. 2f at 8.)
Fallon discussed the issue of community need. He addressed factors that had been addressed at the hearing on the First Application — that 50% of the Country Club's membership consists of Weston residents; the Country Club offers its facilities free of charge to community groups and others, such as Weston police officers; private recreational clubs are permitted uses under the Town's regulations; and the Town Plan of Conservation and Development states that private recreational facilities such as the Country Club should be encouraged to continue.
Fallon also addressed factors that had not been addressed at the hearing on the First Application. He pointed out that the Weston High School's girls and boys golf teams have taken advantage of the Country Club facilities free of charge for decades. They practice there, use the banquet facilities, and receive discounts at the pro shop. The Country Club also provides free membership to Weston clergy and employs many Weston residents. Moreover, the new pool and parking area will serve community needs by enhancing safety, replacing a nonconforming structure, and making parking more conforming to current regulations. (ROR, Exh. 2b at 8-9; Exh. 2c at 6 12; Exh. 2d at 7; Exh. 2g at 3.)
On September 24, 2007, the Commission approved the Second Application with several conditions. Those conditions include the following requirements:
1) Plaintiffs must install and maintain in perpetuity landscaping, trees and other plantings as shown on their plans.
2) The Newly Acquired Property can be used exclusively for parking. No other temporary or permanent structures are approved.
3) The surface of the parking area must consist exclusively of eco payers.
4) No overnight parking is permitted on the Newly Acquired Property and no lighting may be installed there.
5) The Newly Acquired Property may be used only from April 15 through October 15 and may be used for no more than ten events during that time period.
(ROR, Exh. 1a.)
The plaintiffs filed their respective appeals which have been consolidated.
The parties appeared before the court on August 7, 2008 to argue their respective positions and present evidence regarding aggrievement. At the request of all parties, the court, with staff and parties' counsel present, viewed the Country Club, the proposed area of development and Mrs. Ally's property. The court has reviewed the briefs of the parties and the entire record.
Findings and Discussions
The Country Club and Mrs. Ally are aggrieved.
The Country Club takes issue as to the condition limiting the use of the parking area to 10 events. Based upon a review of the record, there is evidence that the Commission fairly relied upon representations that the Country Club made about the seasonal and isolated event need for parking. It is also clear that the Commission meant the term "event" to refer to one day or more, such as a golf tournament that lasts for several days. Under these circumstances, the Commission's limitation of the parking area to no more than 10 events during the seasonal period is reasonable and is supported by the evidence in the record.
It is also clear that the Commission held public hearings where input was sought from the entire community, including Mrs. Ally. Those concerns were aired and considered. After considering the evidence that the proposed use will serve a larger community need or convenience, and that the proposed use was in harmony with the residential neighborhood, considering also the Country Club's expert, Kerin, regarding property values and drawing also from the Chairman's personal knowledge of real estate values, the Commission appears to have acted fairly in reaching its decision.
The evidence in the record supports the Commission's decision. The Commission fairly assessed the needs of Mrs. Ally, the neighborhood, the larger community and the needs of the Country Club. The court cannot substitute its own findings and conclusions for the decision of the Zoning authority. Verney v. Planning Zoning Board of Appeals, supra, 151 Conn. 580. The sole question is whether the authority acted legally and within its discretion. Lindy's Restaurant, Inc. v. Zoning Board of Appeals, supra, 143 Conn. 622.
The decision of the Commission is reasonably supported by the record.
Conclusion
The decision of the defendant, Planning Zoning Commission of the Town of Weston is upheld and the appeal of the Country Club and Mrs. Ally is dismissed.
So Ordered.