Opinion
No. CV 02 0189484 S
June 3, 2004
MEMORANDUM OF DECISION
Procedural History
The plaintiffs Carl G.R. Carlson (hereinafter "Carlson" and Richard Holleran (hereinafter Holleran) filed an administrative appeal from the decision of the Planning and Zoning Commission of the Town of Greenwich (hereinafter "Commission") approving the final site plan/special permit and rezoning application of the defendant Young Men's Christian Association of Greenwich (hereinafter "YMCA") to change the zone of the YMCA from Central Greenwich Business Retail Zone (hereinafter "CGBR") to Central Business Retail Zone with Historic Overlay (hereinafter CGBR-HO). The defendant YMCA filed its original application for preliminary site plan approval/special permit and rezoning application in 2000 (application #PSP 2093) which was denied without prejudice by the Commission on 4/18/2000. Return of Record 11.F (hereinafter ROR). Subsequently, the defendant YMCA filed applications PSP 2190 and RZ 01-02 dated March 16, 2001 to the Commission wherein the Commission decided as follows: as to PSP 2190 the Commission directed the YMCA "to move to final site plan with modifications" (ROR 11F); as to PSP 2190 and RZ 01-2, the rezoning with historic overlay, said petition is denied without prejudice . . . "applicant is directed to submit a new application" ROR 11F. Thereafter, on December 11, 2001 the defendant, YMCA by its agent, John Tesei, esq., applied to the defendant Commission for a final site plan/special permit review as well as a rezoning of the site from CGBR to CGBR-HO.
This court previously ruled that Holleran did not meet the legal standard of classical aggrievement and accordingly dismissed his appeal. See D.N. CV-02-0189484S, Memorandum of Decision dated January 3, 2004.
The purpose of the application was to allow the Greenwich YMCA to expand from its original 1916 structure to construct additions comprised of 45,293 square feet encompassing a new gymnasium and natatorium including a 50 meter olympic size swimming pool, parking, a child care center and the elimination of existing tennis courts, ROB 1c, ROR 1d ROR 11. The rezoning from CGBD to CGBD-HO would authorize the Commission to modify the floor area ratio, coverage, asking and screening requirements for the YMCA. ROR 11.
The Commission published notices of public hearings on the applications on February 7, 2002, March 7, 2002, March 14, 2002 and April 4, 2002. Said hearings were held on February 12, 2002 (ROR 27), March 19, 2002 (ROR 39) and April 9, 2002 (ROR 67). On April 16, 2002 the commission voted to approve the historic overlay application RZ 05-01 and approved the final site plan application 2237 with modifications. ROR 72. Notice of the Commission's decision was published in The Greenwich Times on April 23, 2002. The Commission's written decision letter was dated April 30, 2002. ROR 72. The written decision consisted of eight pages, two full pages detailing twenty-six required modifications. ROR 72. The plaintiffs filed their appeal on May 7, 2002 within the time mandated by Conn. Gen. Statutes. § 8-8.
Argument Historic Overlay/Final Site Plan/Special Permit
The plaintiff contends that the Commission in granting the Historic Overlay designation for the site and in approving the Site Plan/Special Permit acted illegally, arbitrarily and capriciously, and in abuse of its discretion in one or more of the following ways:
1. The Commission's action on the Final Site Plan application does not meet the requirements of Section 6-14.1(a) of the Greenwich Building Zone Regulations, or the standards for review set out in Section 6-15 thereof that the Planning Zoning Commission in reviewing site plan applications must insure conformity with the Greenwich Plan of Conservation and Development (1998), in at least the following respects: Violation of general Housing recommendations in Section 3.10.1. Policies/Recommendations that preservation of residential neighborhoods requires strict enforcement of and adherence to zoning regulations;
2. Violation of Commercial Uses Section 4.10 Policies/Recommendations "2. To improve parking and traffic (sic) a. Prohibit expansion of business zones and any increase in permitted Floor Area Ratio in all business zones . . ."
3. Violation of Commercial Uses Section 4.10 Policies/Recommendation "6. Prevent commercial impacts and activities from encroaching on residential areas."
4. Violation of general Housing recommendations in Section 3.10.1. Policies/Recommendations that preservation of residential neighborhoods requires strict enforcement of and adherence to zoning regulations;
5. Violation of Commercial Uses Section 4.10 Policies/Recommendations "2. To improve parking and traffic
a. Prohibit expansion of business zones and any increase in permitted floor area ratio in all business zones . . ."
6. Violation of Commercial Uses Section 4.10 Policies/Recommendations "6. Prevent commercial impacts and activities from encroaching on residential areas."
b. The Commission's actions on the Special Permit portion of the application do no meet the requirements of Section 6-17(d) of the Greenwich Building Zone Regulations, particularly subsections (1), (4), (8), (9), (10), (11), and (12) that relate to protecting the adjoining residential neighborhood and the historic structures it contains from the huge scale of the proposed new YMCA construction that has been approved.
c. Section 6-103.1, Use Regulations and Special Requirements for the CGBR Zone, makes clear that none of the uses that the YMCA proposes for the added space meet those standards and that the Planning Zoning Commission thus had no legal authority for permitting such uses and its action was ultra vires.
d. The effect of the Commission's actions is to permit a huge expansion of a present non-conforming use, in patent violation of the Greenwich Building Zone Regulations and town development plans and contrary to state statutes limiting expansion of nonconforming uses.
e. Finally, Section 6-109.1, Historic Overlay Zone (HO), makes clear that the building additions proposed by this application cannot legally be built at all in the HO Zone without further variances or special permits, amply demonstrating the intellectual dishonesty of trying to graft on an HO overlay zone for the sole purpose of gaining a greater FAR for the new construction that would, barely, permit this huge enlargement of an existing non-conforming use, while doing violence to the concept of historic preservation and protection of the adjoining historic residences and the historic YMCA building itself.
f. In publishing its Notice of Decision on April 23, 2002, the defendant Commission did not fully set forth or articulate the reasons, circumstances or conditions upon which its decision was based as required by Greenwich Zoning Regulations § 19-22. Plaintiffs' Brief, pp. 6-8.
The court will address all of the plaintiffs' allegations.
I. Standard of Review Historic Overlay Zone (HO)
The zoning commission's consideration of an historic overlay zone application is an administrative function.
"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 . . . [E]vidence 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." (Citations omitted.) Cybulski v. Planning Zoning Commission, 43 Conn. App. 105, 110-11, 682 A.2d 1073, cert. denied 239 Conn. 949, 686 A.2d 123 (1996). "The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence . . . to support any such reason [however] must be substantial . . ." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987).[11]
Heithaus v. Planning and Zoning Commission of the Town of Greenwich, 258 Conn. 205, 221 (2001)
Substantial evidence therefore governs the review of the decision of the zoning commission to grant a historic overlay zone designation.
Section 6-109.1 of the Town of Greenwich Zoning Regulations outlines the requirements for HO designation. Section (3) articulates the standards.
(c) Standards
(a) The Commission may grant an HO zone to a site where it finds that the structure or structures on the site are not less than 40 years old and are architecturally or historically notable in accordance with any or all of the following standards: (1/6/88)
(1) The uniqueness of the structure or structures. (1/6/88)
(2) The historical significance of the structure or structures. (1/6/88)
(3) The distinctiveness of the architectural character of the structure or structures. (1/6/88)
(4) The placement and/or treatment of unusual and/or historic structures on a site constitutes a unique estate setting significant to the Town's history and worthy of preservation. (1/6/88)
A review of the record clearly establishes that the zoning commission met the substantial evidence test in granting the HO zone design. The Commission held Public Hearings on this application on February 12, March 19 and April 9, 2002. ROR 72. The court has reviewed the transcripts of those public hearings and is impressed with the exhaustive evidence presented before said commission. In its April 30, 2002 decision letter the Commission made specific findings based on the evidence before it pursuant to Sec. 6-109.1. Those findings, in pertinent part, are as follows;
WHEREAS this site was previously reviewed by the Commission in the winter of 2000 (Application PSP #2093) and a similar proposal submitted at that time was denied without prejudice by the Commission on April 18, 2000.
WHEREAS public hearings on the preliminary were held May 8th, June 12th and 19, 2001 and the Commission voted to move this application to final with modifications on August 9, 2001, thus this application represents the applicant's efforts to incorporate the requested modifications from the preliminary; and . . .
WHEREAS the YMCA building, built in 1916 is listed on the National Register of Historic Places and its preservation is consistent with goals and policies of Chapter 6 of the Plan of Conservation and Development; furthermore, the building is listed in Greenwich's Historical and Architectural Resources Inventory, described as a handsome, imposing building, a notable part of the overall streetscape, architecturally distinguished, outstanding; and
WHEREAS the Historic District Commission at their October 22, 2001 meeting voted in favor of the proposed Historic Overlay zone for this building by a vote of 4 to 1 with modifications including a bow truss roof design and clearstory windows for the pool addition and a smaller connecting element between the old and new buildings, the HDC approval carries with it a request that they be allowed to review the project during design development and materials selection and the Y will reasonably cooperate with HOC on requests for information; and
WHEREAS the Commission finds that the YMCA is an important element of the Town's cultural historical and architectural resources and the Y is a community center and its location in central Greenwich serves as a focal point for the Town as whole; and
WHEREAS the Commission finds that the proposed new additions should not obscure the views of the historic 1916 facades and the wings should be compatible with the scale and design of the original building, enhancing rather than competing with it, the Commission advised the applicant that, to protect the integrity of the historic building, connection to the new wings should provide a visual separation. In the preliminary plan the gym addition achieved this goal more successfully than the pool addition, however the Commission now finds that the revised final plan adequately provides for visual separation; and
WHEREAS the Commission finds that its history and location make this is a unique, one of a kind property and that approval of the HO zone shall not be a precedent for other potential H-O zone designations that involve major building additions; and
WHEREAS according to Section 6-109.1 of the BZR a perpetual preservation easement shall be required; and the town's model "Easement and Declaration of Preservation Restrictions" includes controls on the additions as well as the historic building; and
WHEREAS the plans as proposed would exceed the maximum building and lot coverage of the CGBR zone, Section 6-109.1(5)(a) allows the Commission to provide incentives for historic preservation by modifying building and lot coverage if the special permit standards of 6-17 are met; and
WHEREAS the Commission reviewed the standards for Historic Overlay (HO) designation under Section 6-109.1(3) and finds that the existing structure meets these standards, including the uniqueness and the distinctive architectural character and of the existing structure; and
WHEREAS the Commission finds that without H-O zoning the parking requirement for this expanded facility under existing zoning would be in excess of 300 spaces, H-O zoning allows the Commission to modify the parking requirements; provided the site plan and special permit standards are met; and the new parking plan and layout for 210 parking spaces including handicapped and valet spaces; furthermore, the Commission notes that Town Traffic Engineer and the Town's traffic consultant reports have agreed with the applicant's traffic consultants modifications to the plans and conditions of operations; and
WHEREAS the Commission finds that the YMCA provides essential community services including health maintenance, fitness programs and social programs for all age groups with an emphasis on youth programs and recreational opportunities and that its location in central Greenwich is an appropriate location for a facility of this type as it is within walking distance from the high density residential area surrounding the downtown shopping district, which area includes a large number of single and two family dwellings in family-oriented neighborhoods several housing developments for the elderly, and most of the town's multi-family housing; and . . . (emphasis added).
The Zoning Commission, based on the substantial evidence presented at the hearings, found that the YMCA met all four standards enunciated in regulation Section 6-109.1 not the requisite one or more. "Should substantial evidence exist in the record to support any basis or stated reason for the zoning commission's decision, the court must sustain that decision. (cit. omitted)." Heithaus, 258 Conn. at 224. The Commission then proceeded to regulation Section 6-109.5 Special Permit-Use and Zoning Rights. Said section specifically provides;
Upon application for Special Permit and submission of a site plan pursuant to Sections 6-15 and 6-17 and upon a finding that the standards of Section 3 are met; (1/6/88)
(a) For structures on sites in the business zone, the Commission may authorize any use presently permitted in any of the business zones for the entire structure and may further authorize modifications of the maximum FAR for office use, coverage, setbacks, parking, and screening for the underlying zone in question; said Special Permit shall not authorize any addition to the structure which will cause the maximum FAR to be exceeded. (Emphasis added.)
In sum, upon finding that the YMCA met the requirements of Section 6-109.1(3) the commission was authorized upon application for special permit to modify maximum FAR, coverage, setbacks, parking and screening. The court now addresses the zoning commission's approval of the YMCA's final site plan and special permit for the property.
The court finds no merit to the plaintiffs' claim (e) that building additions proposed cannot legally be built without further permits or variances. No evidence exists to support this contention. The plaintiffs bear the burden "of proof." Abramson v. Zoning Board of Appeals, 143 Conn. 211, 214 (1956).
II. Standard of Review/Special Permit/Site Plan CT Page 8880
The Connecticut Supreme Court has frequently and definitively established the standard of review of a zoning commission or board.
Courts are not to substitute their judgment for that of the board; Koprroski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972); Wil-Nor Corporation v. Zoning Board of Appeals, 146 Conn. 27, 30, 147 A.2d 197 (1958); and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. See Young v. Town Planning Zoning Commission, 151 Conn. 235, 245, 196 A.2d 427 (1963). "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . We, in turn, review the action of the trial court." Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). See Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965). The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968); Talmadge v. Zoning Board of Appeals, 141 Conn. 639, 642, 109 A.2d 253 (1954).
Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980)
In addition,
It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing; Spectrum of Connecticut, Inc. v. Planning Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382 (1988); as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). CT Page 8881
Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32 (1988).
In specific reference to the zoning commission's decision on a special permit or site plan, the court has held that the commission acts in an administrative capacity and "its function is to determine whether the applicant's proposed use is one that satisfies the standards set forth in existing regulations and statutes." (Cit. omitted.) Cybulski v. Planning and Zoning Commission. 43 Conn. App. 105, 110 (1996).
The Cybulski court proceeded to delineate the standard of review on a special permit/site plan application.
Review of zoning commission decisions by the Superior Court is limited to determination of whether the commission acted arbitrarily, illegally or unreasonably. Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96, 626 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, 540-41, 525 A.2d 940 (1987). The 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. 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 as 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 though their personal knowledge of the area involved. Burham v. Planning Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). Where a zoning authority has expressed the reasons for its decision, a reviewing court "may only determine if the reasons given are supported by the record and are pertinent to the decision," and the authority's action "must be sustained if even one of the stated reasons is sufficient to support it." Torsiello v. Zoning Board of Appeals, supra, 50, quoting Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1981). Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 460-61, 567 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 588 (1990)." Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 10-11, 613 A.2d 1358 (1992).
Cybulski v. Planning and Zoning Commission, 43 Conn. App. 105, 110-11 (1996)
The substantial evidence rule therefore requires a determination whether there was a substantial basis of fact before the board from which the fact in issue could be reasonably inferred. This basis of fact must be enough to justify, if the case was tried to jury, a refusal to direct a verdict. The court must examine the Commission's decision to approve the final site plan and special permit within these stringent parameters.
The plaintiffs argue that the Commission abused its discretion in six specific ways. Arguments 1, 2, 3, 4, 5 and 6 address violations of Sections 6-14.1(a), 6-15, 4.10 and 3.10.1 of the Greenwich Zoning regulations. Section 16-14.1(a) governs the procedure for filing an application for site plan approval and sets the time period in which the Commission must act. There is nothing in the record to indicate that neither the YMCA nor the Commission failed to act within the appropriate time period. Sec. 6-15 sets standards which include (1) conformity of all proposals with the Plan of Development; (2) safe, adequate and convenient vehicular and pedestrian traffic circulation both with and without the site; (3) the protection of environmental quality and the reservation and enhancement of property values; (4) a high quality of building design, neighborhood appearance and overall site design and (5) adequate source of potable water. Section 4.10 concerns various policies and recommendations relating to improving parking and traffic, prohibiting expansion of business zones and preventing commercial encroachments into residential areas. Similarly, Section 3.10.1 contains recommendations concerning preservation of residential neighborhoods.
The court concludes that these six alleged violations are without merit. The sections of the regulations quoted by the plaintiffs are policies and recommendations relating to the Greenwich Plan of Conservation and Development. ". . . a master plan is `merely advisory in its effects . . .' AEL Realty Holding, Inc. v. Board of Representatives, 83 Conn. App. 613, 622 (2004).
Further,
"A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties." Summ v. Zoning Commission, supra, 87. " The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." First Hartford Realty Corp. v. Plan Zoning Commission, supra, 541. (Emphasis added.)
Heithaus v. Planning and Zoning Commission, 258 Conn. 205, 218 (2001).
The Commission, based on substantial evidence before it, found that the "YMCA provides essential community services . . . the concept of a 50 meter pool and a new gym as a community enhancement; the YMCA is important to the community . . ." ROR 72. In granting the application, the Commission satisfied the requirements of the Comprehensive Plan by promoting the best interests of the entire Greenwich community. (See findings previously noted.)
The court's reasoning as to violations 1-6 compels a similar conclusion as to plaintiff's argument (b) alleging violations of Section 6-17(d)(1), (4), (8), (9), (10), (11) and (12). Similarly his argument is without merit.
The plaintiffs' (c) challenges the authority of the Commission to grant said site plan and special permit allegedly in violation of Section 6-103.1, claiming that the commission was acting ultra vires. The plaintiffs offer no evidence or case law in support of this argument. The burden of proof to demonstrate that the commission acted improperly is upon the plaintiffs. Whittaker, 179 Conn. at 654. The same reasoning governs the plaintiffs' claim that the action of the commission permitted "a huge expansion of a present non-conforming use . . ." Nothing in the record indicated that the YMCA was nonconforming use. The plaintiffs offered no evidence, historical or legal in support of this bald assertion. This argument fails.
The court finds that the substantial evidence standard of review is met in this case. The record is overwhelming, containing 113 exhibits. The original application was filed in 2000. There were hearings on the preliminary application. Said application was denied without prejudice to address various concerns of the commission. In all, the YMCA was directed to address twenty-eight modifications to the original 2000 application. The YMCA addressed each and every modification requested. Expert testimony by the commission experts as well as YMCA engineers and consultants was provided to the Commission. Traffic and parking was addressed both during construction and upon completion. ROR 3, ROR 4, ROR 5, ROR 36a-36m, ROR 60, ROR 54a. Town engineers and consultants supported the findings of the YMCA's proposals. The Architectural Review Committee as well as the Historical Society supported the YMCA. The April 30, 2002 written decision had six ages of specific findings relating back to the twenty-eight modifications originally requested. ROR 72. In addition the April 30, 2002 decision letter outlined 26 further modifications. The plaintiffs' final assertion that the Commission failed to articulate the bases for its decision is patently absurd.
Conclusion
The Commission's decision to rezone the YMCA's property from CGBR to CGBR-HO is supported by substantial evidence. The Commission's decision to approve the final site plan and grant the special permit is also supported by substantial evidence. The Commission did not act illegally, arbitrarily or in abuse of its discretion. The plaintiffs did not sustain their burden of proof. The plaintiffs' appeal is dismissed.
Marylouise S. Black, J.