Opinion
No. CV08-4009709S
March 31, 2009
MEMORANDUM OF DECISION
The plaintiffs in the above entitled matter are a condominium association located at 2 Buddington Park, Shelton, Connecticut and two residents, Lynn Farrell and Maurice Cayer, both owners of units therein. Deeds have been filed with the court as plaintiff's exhibits which establish ownership of property either abutting or within 100 feet of the parcel which is the subject of this appeal. The party plaintiffs are therefore found to be aggrieved with standing to pursue the appeal.
On September 11, 2007, the defendants Farrell submitted an application to the Shelton Planning and Zoning Commission (PZ) pursuant to Section 34 of the Shelton Zoning Regulation for the development of seven residential units on its property consisting of 3.35 acres. (R of R #1.) The PZ held public hearings on October 23, 2007 and November 27, 2007 and on February 26, 2008 conditionally voted to approve the application. The resolution to approve the application is attached hereto as Exhibit A.
The plaintiffs by a complaint dated March 19, 2008 appeal the adoption of the resolution permitting the development with certain changes claiming that the PZ abused its discretion in that:
(1) the commission approved the application despite procedural irregularities which render the approval null and void;
(2) PZ approved the application despite the fact that the Shelton Inland Wetlands Commission had not submitted a report;
(3) that the Planned Development District is not consistent with the neighborhood and the Plan of Conservation and Development of the City of Shelton;
CT Page 6637
(4) that the approval by the PZ is in violation of the zoning regulations;
(5) The PZ failed to file its decision within the time allotted by law.
Section 34 of the Shelton Zoning Regulations allow the creation of Planned Development Districts (P.D.D.). In considering an application under this section the PZ is acting in a legislative capacity rather than an administrative capacity and has wide and liberal discretion and is free to amend its regulations "whenever time, experience and responsible planning for contemporary or future condition reasonably indicate the need for change." Blakeman v. Planning and Zoning Commission of the City of Shelton, 82 Conn.App. 632, 643. It is a 3-step process under Sec. 34. The first step is location of property within a special development area, the second is an informal application with Initial Development Concept Plans and the third step is a final application for a district with Final Site Development Plans. The plaintiffs appeal from the adoption by PZ of the Farrell's application at the second stage.
Initially, it should be noted that by vote of residents attending the first public hearing the PZ was required to approve the application by a two-thirds vote of all the commission members. See C.G.S. 8-3. Here, the commission approved the regulation by a vote of 4 to 2.
Addressing the issues as briefed by the appellants/plaintiffs, the plaintiffs first complain that the P.D.D. did not comply with Sec. 34 of the regulation in that Section 34.5.2 sets out items for consideration by the PZ and Section 34.6 sets out areas into which the PZ may inquire. The section however does not mandate such inquiry. Therefore if the PZ did not specifically indicate consideration of this item it would be within their discretion.
The plaintiffs also claim that the P.D.D. is unconstitutional because it fails to provide any standards for setbacks and building locations. The resolution adopting the proposal of the defendants Farrell reflected a lowering of density by a reduction of the number of proposed units from seven to six and indicated that the Final Detailed Plans should include (underlining mine) building, separation and side yard requirements. Counsel for the Farrells points out that there is no statutory or case law requiring minimum setback or building separation, although it is clear that the PZ in stage 3 would impose such requirements.
The plaintiff next claims that the applicant failed to provide adequate notice in that the notice failed to comply with C.G.S. 8-3(a). It is the claim of the plaintiffs that the notice failed to include a "metes and bounds" description but simply gave notice of address of the property and referral to the assessor's map 62, lot 31 (R of R #10). The court in Bridgeport v. Planning and Zoning Commission of the Town of Fairfield, 277 Conn. 268, 273 concluded that the statute was complied with if the notice "gave all affected parties notice of the prescribed location and boundaries of the property by referring to maps on file in the tax assessor's office."
Additionally, R of R #15 indicates that 15 letters were sent to surrounding property owners including the plaintiff Buddington Park Condo Association. The plaintiff, Lynn Farrell and Maurice Cayer, 25 and 8 Buddington Park respectively appeared and spoke at the hearings. It was noted by counsel for the Farrells in his brief at page 7 that the policy of the PZ as to condos is to send notice to the condo association of hearings rather than the individual residents which seems to the court to be a reasonable attempt to comply with Section 52.2.1 of the regulations.
The plaintiffs next claim that the vote of the commission to approve the application was illegal in that one member of the commission was not present at the meeting of November 27, 2007 (Sylvester) and two members were not present at the October 23, 2007 meeting as they were not members of the PZ having been newly elected subsequent thereto. Because of the concern of counsel for the applicants that the upcoming election could affect the composition of the commission the hearing was continued to November 27, 2007 at which time the minutes reflect that the entire presentation of the applicants was given anew, R of R #9. It is the claim of the plaintiffs that there is no evidence that the members who were not present at the several hearing familiarized themselves with information offered at the meetings which they missed. The plaintiff's attorney who was present at the hearing prior to the vote of the commission had the opportunity to raise the question of the member's familiarity with the facts surrounding the application and move their disqualification if considered appropriate. The failure to do so is a waiver of any claim of disqualification. Fuller, Land Use Law and Practice, Sec. 47.1 p. 30 citing MJM Land v. Madison Inland Wetlands Agency, 39 Conn. L. Rptr. 596.
It is the plaintiffs' further claim that following the close of the public hearing that the commission received a set of revised plans. It appears from the transcript of the meeting of February 26, 2008, R of R #6, that the PZ's consultant Anthony Panico referred to a draft resolution which left the number of units blank. The applicant had suggested lowering the units from seven to six which resulted in removing objections to wetland intrusion and spacing between units, as well as other considerations. Receiving information from staff members after the public hearing is closed is permitted. "Because the commission is composed of laymen it is entitled to professional technical assistance in carrying out its responsibilities," Yurdin v. Town Plan Zoning Commission, 145 Conn. 416, 421, Hawkes v. Town Plan and Zoning Commission, 156 Conn. 207, 212. The plaintiffs while claiming that they were prejudiced offer no explanation as to how they were prejudiced by the reduction of the number of units as proposed in defendant's application. "There must be a showing of substantial prejudice from illegal receipt of evidence by the agency in order to obtain a reversal of its decision." Fuller, Land Use Law and Practice, Sec. 47.4, p. 54-55. Here the record indicates that the information received by the PZ was from its own staff and was requested by the PZ. Because the applicant had yet to go before the PZ on the submission of its final detailed plans under the 3-stage process the plaintiff would have an opportunity to be heard on the number of units and any claim of prejudice by the plaintiffs could be considered.
As to the claim of consistency with the area it is noted from aerial photos of the site and abutting properties that with the proposed development of six units the density would be significantly less than any of the abutting properties and appears therefore to be consistent with the development of the surrounding area.
Initially the court observes that the court's review of such appeals as presented in this manner is limited. An appropriate exposition of the court's authority was set out in Cybulski v. Planning and Zoning Commission, 43 Conn.App. 105, 110. "Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegal or unreasonably." Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96 A.2d 698 (1993). In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525-40, 41, 525 A.2d 940 (1987). The substantial evidence rule is similar to "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. It 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. Id., 541-42. "The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised." Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49, 484 A.2d 483 (1984). The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site; id., 49-50; or through their personal knowledge of the area involved. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). "Courts allow zoning authorities a wide and liberal discretion in determining what the public need is and how it can be met. This is so because local zoning authorities live close to the circumstances and conditions which create local zoning problems and shape the method of their solution." Levinsky v. Zoning Commission, 144 Conn. 117, 125. See Homart Development Co. v. Planning and Zoning Commission, 26 Conn.App. 212, 216; Malafronte v. Planning and Zoning Board, 155 Conn. 205, 208.
These determinations may not be disturbed by the courts unless it is established that the commission acted illegally or arbitrarily.
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.
The court has attached as Exhibit A a copy of the Resolution as adopted by the PZ. The facts and findings reflect a thorough and complete consideration of the many aspects of the applicant's proposal. The court cannot conclude that the commission abused its authority or its discretion in adopting the resolution approving the application of the defendants Carol and Robert Farrell.
The appeal is dismissed.
EXHIBIT A
SHELTON PLANNING AND ZONING COMMISSION
February 26, 2008
ADOPTED RESOLUTION
RE: Application #07-57 Petition of Dominick Thomas for Robert Carol Farrell Proposed Planned Development District (PDD) for a Residential Community entitled Meadow View Subdivision on Buddington Road (Map 62, Parcel 31) in a Residence R-1 Zone and a Light Industrial Park LIP Zone
Application Facts: CT Page 6641
The petitioner proposes to establish a Planned Development District (P.D.D.) encompassing the subject 3.35 acre property, owned by Robert and Carol Farrell. The property is situated on the southeast side of Buddington Road and abuts the Wal-Mart property, Buddington Park Condominiums and the Heritage Pointe cluster single family development. On the opposite side of Buddington Road are one or two single family homes. The applicant proposes to develop a small group of single family detached residential units on individual sites served by a private road and privately maintained by a community association. The site has approximately 216 feet of frontage on Buddington Road. Access to the site is from Buddington Road but the site is not readily visible from the public road. The subject site occupies a transitional location between the single family neighborhood to the west and the commercial development to the east and is adjacent to multi-family condominiums to the north and clustered single family development to the south.
The property is partly wooded and characterized by variable topography. Development of the site is somewhat constrained by a designated inland wetland area and steep slope that divides the frontage area from the interior area of the site. The private road needed to access the interior portion traverses an area currently used by the property owner to access the interior area, although significant filling will be necessary to maintain a reasonable grade for the road. The steep grade is noted by the City Engineer but is found to be acceptable as a private street, comparable to other similar circumstances elsewhere in the City. The individual single family home sites will necessitate little grading with relatively minor impacts on the natural environment.
The development contemplates attractively designed homes with traditional lines and materials, single and two story in height, full basements and garages, similar in character to the adjacent homes in the Heritage Pointe development. Existing trees and vegetation, supplemented with landscaped berms and plantings, combined with a preservation of natural buffers, should reasonably screen proposed homes from adjacent residential development. Public water supply and public sanitary sewers are available in Buddington Road.
Storm water flow from the site drains naturally towards the wetlands areas, joins with drainage from the adjacent property and discharges at the easterly edge of the adjacent site. On-site drainage will be appropriately controlled with on-site detention facilities, sedimentation basins and oil separators as needed, prior to discharge into the natural wetland areas and watercourses. The City Engineer has found the storm water management plan to be sound, with respect to the 25 year storm event, with post development runoff rates less than the pre-development levels. However, he has requested confirmation that adequate detention will also be in effect for the more frequent storm events.
The Commission made the required referrals and held a duly noticed public hearing on the proposal on October 23, 2007, continued to and closed on November 27, 2007. Since that time, the Commission and staff have been engaged in a detailed review of all application materials and public hearing testimony, have viewed the exhibits, visited the site and discussed several issues and concerns. Residents from the adjacent Heritage Pointe development and the Buddington Park Condominiums expressed opposition to the proposal due to a variety of concerns, with primary focus on drainage considerations and inland wetlands impacts. Other residents on Buddington Road had no opposition to the proposal, expressing support for the applicant as a long time resident. They cited his need to endure the impacts of condominiums on one side and a denser single family cluster on the other side.
The Commission has completed its detailed review of the proposal, during which it noted the current pattern of zoning applicable to the property and the adjacent pattern of land uses. The Commission discussed the road design, density of development as compared to the adjacent developments, environmental impacts, safety of access and egress, storm drainage, etc. and summarized its findings and concerns.
Findings and Concerns
The Commission is familiar with the general area and the site in particular and after its comprehensive review of the proposal and accompanying materials and after considering the comments and testimony received at the public hearings, the following findings and concerns are noted:
1. The subject Application requests approval of a 7 unit development. The proposed development would result in the preservation of the on-site wetlands areas by encompassing and protecting all of the natural wetlands on the site. These areas will be privately owned in common by an association or other entity responsible for the on-going maintenance and administration of the development. The protected areas now indicated will increase further as a result of the introduction of conservation easements to protect property line transitions and buffers. The result will be conservation and protection of approximately one-third of the site.
2. Previous rezoning of the adjacent properties places the subject site in a transitional position, adjacent to commercial development and bordered by multi-family condominiums on one side and clustered single family homes on the other side. These circumstances, coupled with the relatively small size of the parcel, make it unreasonable to continue the current low density, R-1 single family zoning of the property. Placing a single home on the interior of this property would be inconsistent with the adjacent land uses and zoning pattern. A form of consolidated single family clustered development is an appropriate land use for the site. As with previously approved developments of this nature elsewhere in Shelton, the PDD technique is the only available zoning approach to accommodate this type of proposal.
3. The Inland Wetlands Commission has previously approved a private road encroachment within the regulated upland review area as part of an earlier, unsuccessful proposal for the property. The elimination of one (1) home, reducing the proposal to six (6) units, will be necessary to eliminate any building encroachments into the protective wetlands buffers. The Water Pollution Control Authority has not yet approved the sanitary sewer service but adequate capacity is available. The applicant must demonstrate total compliance with W.P.C.A. requirements and obtain approval of its application. The review comments of the City Engineer are contained in his letter of 12/2/08. They reflect his concern with the private road grade, the need for additional refinements to the storm water management plan and a desire to minimize the number of homes served solely by the private road. The Fire Marshal, Fire Chief and the Local Traffic Authority (Chief of Police) expressed no concerns. In any event, all reasonable requirements of the safety authorities must be adequately addressed by the Applicant.
4. The proposed Initial Development Plan has been reviewed, noting several areas needing further attention. The minimum spacing between the homes needs to be increased. In general, a typical minimum of 30 feet is desirable. Currently there is one house that encroaches within the wetlands upland review area. The buffers adjacent to the north and south property lines should be as large as possible. Where feasible, landscaping berms should be used to increase the effectiveness of the buffers. If possible, a minimum distance of 95 to 100 feet between proposed homes and off-site buildings should be provided. To adequately address these circumstances, it would be necessary to eliminate one (1) or more units, reducing the total to a maximum of 6 (six) units. This will minimize the number of houses relying on the steeply graded private street for access and egress. It will also allow adjustments in the location and spacing of remaining units to achieve solutions to the spacing concerns and enhanced buffers. The configuration of the turn around, driveway spacing and visitor parking spaces should be reexamined with staff once more. A minimum of 3 visitor parking spaces should be maintained and located. A passive conservation easement with a width of at least 20 feet should be provided along all edges of the site, with no clear cutting and/or grading or other site disturbance permitted other than cleaning up of underbrush. Where necessary, supplemental plantings should be incorporated. The limits of site disturbance and clear-cutting should be carefully delineated and limited to what is actually necessary for construction. If at all feasible, side garage access should be provided to one or more homes to minimize all of the garage doors facing the street. In view of the frontage constraints of the individual parcels, the applicant may find it desirable to develop an alternative building footprint that facilitates this approach. Provisions for centralized mail delivery boxes should be made, in the vicinity of the site entrance. The Applicant should work closely with staff to accomplish these modifications and revisions to the satisfaction of the Commission.
5. In view of the close proximity of individual single family homes and the limited size of the individual fee parcels, as proposed for this residential development, good controls are necessary. It is important to regulate the future use, maintenance and upkeep of the properties, to preserve the purpose and intent of the development and to protect property values. Adequate regulations that prevent future expansion, conversions of garage space to living space, excessive enlargement of the building footprint and/or envelope, impose restrictions on accessory structures and other outdoor uses and activities, etc. are necessary. Such things as outdoor play equipment, sheds and other detached accessory structures, including swimming pools, should be carefully regulated, requiring specific and individual approval by the Association and, when appropriate, the Shelton Planning and Zoning Commission. The applicant should provide a draft of proposed covenants and restrictions that will be applicable to the entire development, including appropriate provisions for their enforcement. Such covenants and restrictions should be legally binding on all owners, with appropriate provisions for enforcement by the Association without the need to resort to municipal enforcement action. The Commission's interests in the enforcement of such restrictions, if necessary, will be brought about by action against the Association. Only those actions that are a direct violation of City zoning will be enforced against the applicable property owner.
6. The Association will be responsible for all maintenance of roads, snow removal, rubbish collection and similar activities. Rubbish disposal should be handled by individual containers within each dwelling unit. Central dumpsters will not be permitted. Binding Association regulations should include provisions for restricting visitor and other parking on the development road, continued maintenance (including periodic cleaning) of storm water management facilities, common area facilities, etc.
7. The Statement of Uses and Standards needs to be modified and refined somewhat, primarily to clarify organizational aspects and Schedule B standards. It should contain provisions for minimum building separations and both a minimum and a total side yard requirement. It should also require substantial compliance with the locations and building footprints as shown on approved Final Detailed Plans.
8. The Commission has examined similar single family communities approved elsewhere in the City and in particular the adjacent Heritage Pointe development. The densities range from approximately 1.6 to 2.7 units per gross acre. The subject application, based on the seven (7) unit proposal, would have a density of 2.1 units per gross acre, well within the established range of densities. By comparison, Heritage Pointe has a density of 2.25 units per gross acre. If we extract wetlands, the subject proposal would have a density of 2.35 units per net acre whereas Heritage Pointe has a density of 2.45 units per net acre. If the proposal is reduced to six (6) units, the density drops to 1.8 units per gross acre and 2.02 units per net acre.
9. The Commission notes that a zoning modification is needed to permit the development of the site to occur in a desirable manner that will result in an effective transition of land uses and that is consistent with planning for the area so as to result in minimal adverse impacts. The zoning regulations lack specific provisions for clustered residential development and there is no other conventional zone available that will provide the degree of control and protection needed in this instance.
After a thorough review and discussion of each of the findings and concerns as noted above, if the Commission is prepared to act, the following Resolution is offered:
RESOLUTION
On the basis of the Commission's detailed study and review of the subject proposal as presented in the comprehensive compilation of application facts, findings and concerns set forth above, the Shelton Planning and Zoning Commission hereby takes the following actions:
A. The subject Initial Development Plans entitled "Meadow View Subdivision" dated October 2, 2007 shall be modified and adjusted to adequately respond to the concerns set forth in the preceding discussion and to specifically address the following, all to the satisfaction of this Commission and its staff:
1. Establish a minimum 20 foot wide conservation easement along the entire property perimeter, with no site disturbance, other than the removal of overgrown underbrush, permitted within said easement area. Supplement perimeter setback areas with landscaped berms where possible, for visual protection and/or control of headlight glare. Adjust lot lines and building locations to achieve a 95 to 100 foot building setback from adjacent off-site buildings.
2. Adjust positioning of lots/buildings to achieve improved spacing. Provide visitor parking for not less than three (3) cars. Visitor parking spaces shall be appropriately marked to prevent regular daily use by residents.
3. Reexamine configuration of cul-de-sac geometry and layout. Adjust location of visitor parking and driveways. The raised center island shall be constructed with slope faced granite curbing to allow accidental wheel mounting by large vehicles. Provide mail delivery facilities as necessary.
4. Show overall site lighting, using decorative poles and fixtures not more than 15 feet in overall height.
5. In addition to general site landscaping, incorporate a typical unit landscape plan, including unit walks and materials, using concrete walks or better.
6. Necessary site and roadway retaining walls shall be indicated and design details provided, including materials and construction and guard railing as needed.
7. All utilities serving the proposed development shall be located underground. Inland Wetlands Commission approval of all regulated impacts shall be obtained prior to final plan submission. Approval of the WPCA shall be confirmed prior to submission of Final Development Plans.
8. The maximum density of the development shall not exceed 6 (six) single family detached dwellings on individual, fee-simple parcels, served by a private road maintained by an association of lot owners. The plan shall result in the permanent preservation of not less than 30% of the site as open space, protected and/or owned in common by the association of home owners. Reasonable walking access to such common areas shall be conveniently located and physically feasible.
9. The modified, revised and amended Statement of Uses and Standards to be applicable to the proposed P.D.D. shall be submitted, reflecting necessary editing and clarification, as well as a draft of proposed association by-laws, responsibilities, rules and regulations and a draft of covenants and restrictions to be applicable to all units. Said documents must incorporate proper provisions for the on-going maintenance responsibility of on-site improvements and facilities, including maintenance schedules. Restrictions shall provide for the on-going maintenance of the individual residences and permitting no accessory structures unless specifically approved by the Association and the Shelton Planning and Zoning Commission, no conversion of garage space to living area, no significant expansion of the building footprint and/or building envelope. They shall provide an acceptable procedure for enforcement of the applicable covenants and restrictions by the Association.
10. The Applicant shall satisfy all comments and concerns of the City Engineer, Fire Marshall, Local Traffic Authority and any and all other applicable municipal boards and commissions.
11. Final Development Plans, including supporting architectural, engineering and detailed landscaping plans and other supporting design details as well as the proposed covenants and restrictions and other related materials shall be submitted on or before September 1, 2008 for final review and approval of the Commission.
At the time of the approval of Final Development Plans, appropriate bonding requirements will be established relative to completion of critical site improvements, sediment and erosion controls, and other areas of concern.
B. On the basis of this conditional approval of Initial Development Plans, the subject PDD is adopted for the reasons found in the discussions preceding the motion and shall be identified as PDD #68.
Said adoption shall become effective on Friday, March 7, 2008 at 8:00 a.m.
The above RESOLUTION was moved by Commissioner Sylvester and seconded by Commissioner Jones.
Upon completion of all further discussion, on a roll call vote, Commissioners Sylvester, Parkins, Jones and McGorty voted in favor.
Commissioners Harger and Lapera voted in opposition.
The Chairman declared the RESOLUTION adopted by a vote of 4 to 2.