Opinion
No. CV 07 4007611
February 24, 2009
MEMORANDUM OF DECISION
I. BACKGROUND AND FACTS
The plaintiff in this action, DGG Properties Co., Inc. (DGG), appeals the Town of Westbrook Zoning Commission's (zoning commission) denial of its application for a special permit, site plan and coastal area site plan (collectively called "the application"). The application was filed on or about January 19, 2007, seeking the demolition of an existing eight-unit, 2955 square foot structure (beach house) and its replacement with thirty-four units of hotel space, totaling 12,985 sq. ft., along with related improvements. This new construction project is referred to as the "New Villas at Water's Edge" (new villas) and is proposed adjacent to Long Island Sound at Water's Edge Inn and Resort in Westbrook, Connecticut (Water's Edge.)
DGG submitted a revised Coastal Area Management application on or about April 18, 2007 (Return of Record 1.)
Water's Edge is an existing resort facility consisting of 14.56 acres, bounded to the east and west by single-family residential housing, to the north by Boston Post Road and to the south by Long Island Sound. Although a portion of Water's Edge is zoned as a neighborhood commercial district (NCD), the site of the proposed construction project is within a high density residential district (HDRD). Based upon its high density zoning status, Water's Edge is entitled to build on 25 percent of the property. The lot coverage increase proposed by the new villa project is 1.58 percent, totaling 13.67 percent if completed, which is well within the allowable building space on this land.
Water's Edge operates its existing hotel and resort facility under a use variance. As a preexisting non-conforming use, DGG was required to obtain an additional use variance from the Westbrook Zoning Board of Appeals (ZBA) to expand its existing operations. The use variance was granted by the ZBA on December 20, 2006, subject to certain stipulations. Based upon the Westbrook Zoning Regulations (zoning regulations), DGG was then required to apply for a special permit from the zoning commission.
Prior to the application and on or about December 20, 2006, the ZBA unanimously voted to grant DGG a use variance to allow a resort expansion with two stipulations, (1) a right of way to a neighbor's property was required to be built in accordance with the submitted plans including fences, railings, grass block pavers, etc., and (2) public or guest use of the roof areas of the proposed buildings was to be prohibited. The ZBA also approved the coastal area management application submitted for its review. The economic development commission also voted to endorse the Water's Edge "new villas" proposal. When a use variance is granted for a use in a particular zone, the applicant must also apply for a special permit, which was denied in this case. (Return of Record 7.)
Section 12.22.04 of the Westbrook zoning regulations provide in relevant part: "SITE PLAN OR SPECIAL PERMIT APPROVAL: The Zoning Board of Appeals shall adhere to the following when application is made for a variance of permitted or prohibited use under these Regulations:
a) Where the use of land, building or other structures is permitted under these Regulations in a district subject to approval of Site Plan and/or a Special Permit by the Zoning Commission, a variance in connection with such use may be granted only subject to approval of a Site Plan and/or Special Permit by the Zoning Commission." (Return of Record No 21.)
The zoning commission held public hearings on the application on March 27 and April 24, 2007. On July 24, 2007, the zoning commission denied the special permit and site plan and also denied without prejudice the Coastal Area Management Plan.
A. Denial of the Special Permit and Site Plan
The zoning commission voted to deny the special permit and site plan, with four members in favor and one opposed. The zoning commission listed seven reasons for the denial of the special permit and site plan. Specifically, the zoning commission stated the following:
1. The proposed use of the subject site is not consistent with the Town's Master Plan of Development as noted by the Westbrook Planning Commission in its letter, dated March 21, 2007.
2. The location, type, character and size of the use and the buildings proposed in connection therewith, and which are located within the HDR zoning district, are not in harmony with the appropriate and orderly development of the Town and the adjoining HDR neighborhood and will hinder or discourage the appropriate development and use of the adjacent property also located in the HDR zoning district.
3. The Applicant has not established that the proposed use will not depreciate adjacent property values. Further, the size and height of all proposed buildings and the extent of all proposed site improvements are not in harmony with the existing character of the adjacent HDR neighborhood.
4. The Applicant has not established that the proposed use and the arrangement of all proposed buildings, structures, facilities and other site improvements comply with all applicable provisions of the Westbrook Zoning Regulations.
5. The height of the proposed buildings, when raised by one foot, as noted in the report of Purcell Association, dated July 20, 2007, will not comply with the height requirements of Section 4.114.06 of the Westbrook Zoning Regulations.
6. The site layout plan is incomplete as set forth on the report of Purcell Associates, dated July 20, 2007.
7. The application is lacking in necessary site details as noted in the report of Purcell Associates, dated July 20, 2007. (Return of Record 8.)
The first three reasons cited by the zoning commission for its denial of the special permit are similar in that they note the incongruity between the new villas plan vis-a-vis the Master Plan of Development and the surrounding HDRD zone. Similarly, the sixth and seventh reasons relate to one another by citing an incomplete plan lacking necessary site details, as set forth on the report of Purcell Associates, dated July 20, 2007.
Reason number one makes reference to the planning commission's determination that the proposal is inconsistent with the Master Plan of Development. The planning commission's first concern was the height and length of the new villas building. The surrounding HDRD zone was of particular concern to the planning commission because of its proximity to the adjacent single-family residential property.
Evidence in the record shows the following: To the east and west of Water's Edge, there are residential lots along the shoreline of Long Island Sound. Of particular concern to the zoning commission was the effect of the Water's Edge proposal on the neighboring Kessler property to the west, immediately adjacent to the new villas project. Essentially, the Kessler property is best described as a small residential island between two larger parcels of land. Substantial evidence in the record supports the conclusion that the Kessler property is a residential lot improved by a single-family dwelling, bordered to the north and east by Water's Edge Resort; to the south by Long Island Sound, subject to a utility easement; and to the west by a large residential parcel of land improved by a large single-family home, which is set back substantially further from the shoreline than the Kessler home.
The Kessler home is a two-story structure that is substantially smaller than the Water's Edge beach house. The Kessler home appears to be accessed by a right of way over DGG's property and the Water's Edge Resort, immediately in front of the beach house scheduled for replacement with the new villas project. Despite the fact that the beach house is a hotel facility, it has the appearance of a large, three-story single-family home with a basement and with multiple gables breaking the roofline of the third floor. This three story beach house faces the ocean and is built into the land sloping away from the shore, resulting in two stories above ground on the northern-most side. (See Return of Record 9k.)
The new villas are proposed to be constructed 12 feet closer to the Kessler home, compared with the existing beach house "footprint," but in compliance with the applicable 15-foot building line. Although both the beach house and new villas project involve three-story structures, excluding basements, the beach house is a substantially smaller building with a gabled roofline. By comparison, the new villas project covers approximately four times the footprint of the beach house. The new villas roofline would extend approximately 35 feet above the ground in each of three phases, extending back along a common wall for 150 feet from the front of the building. Because the new villas construction follows the slope of the land away from the shoreline, the resulting roofline at the northern end of the new villas would be approximately 55 feet above the ground level, compared with the front of the building, and approximately 68 feet above sea level.
B. Denial of the Coastal Area Management Plan
The zoning commission separately voted to deny, without prejudice, the coastal area management site plan for the construction of the new villa structures, based upon the development plans submitted to the zoning commission for the following reasons:
1. The proposed development would intensify the non-water dependent use and non-conforming use of the site.
2. The proposed development will adversely impact the coastal resources and future water-dependent development activities in the immediate area.
3. The proposed development does not further the public interest in waterfront access to the area.
4. The Applicant has not established that the development will not have adverse impacts on the coastal resources and future water-dependent development activities.
5. The Applicant has not established that there will not be any negative impact to the beach and dune resources in the area.
6. The Applicant has not established that the waste water and storm water systems which will service the proposed development will adequately protect the water, beach and dune resources on and adjacent to the site.
7. The Applicant has not established that the site can adequately support the additional residential units without adversely impacting surface or groundwater quality. (Return of Record 8.)
II. AGGRIEVEMENT
General Statute § 8-8(b) provides, in pertinent part, that any person "aggrieved by any decision of aboard . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." "[I]t is well-settled law that the question of aggrievement is a jurisdictional one and claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it." Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974). Aggrievement is not a fact in dispute in this matter. Sufficient proof was nonetheless offered at trial for the court to find the existence of a factual basis for aggrievement.
III. STANDARD OF REVIEW
An appeal from a decision by a municipal zoning board is statutory in nature and the standard of review by a state court is well established. Our Appellate Court has stated the standard of review as follows: "[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [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 . . . Where the board states its reasons on the record we look no further." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 84-85, 868 A.2d 749 (2005). "Where a zoning [commission] has stated its reasons for its actions, 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 . . . The [board's action] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] principle . . . applies where the [commission] has rendered a formal, official, collective statement of reasons for its action . . . Thus, where a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 868, 946 A.2d 916 (2008).
"When deciding an appeal from a decision of the board, the trial court must determine whether the board has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The burden is on the plaintiffs to demonstrate that the board has acted improperly in making its decision . . . A decision of the board will be reversed only when the plaintiff has proven that the decision was unreasonable, arbitrary or illegal . . . A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. Therefore, as long as honest judgment has been reasonably and fairly exercised at the local level, the trial court must not substitute its judgment for that of the zoning board." (Citations omitted.) New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. denied, 224 Conn. 922, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993.).
A. Review of Special Permits and Exceptions
Whether a zoning board grants a special permit essentially is a discretionary process, Irwin v. Planning Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). "[A] special [exception] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover, we have noted that the nature [of special exceptions] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood . . . Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Citations omitted; emphasis in original; internal quotation marks omitted.) A. Aiudi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 203-04, 837 A.2d 748 (2004). "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." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 455, 853 A.2d 511 (2004).
"[C]ourts use the terms `special exception' and `special permit' interchangeably." A. Aiudi Sons v. Planning Zoning Commission, 267 Conn. 192, 195 n. 4, 837 A.2d 748 (2004).
"It is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations . . . Furthermore, [o]n more than one occasion, our Supreme Court has held that standards set forth in the zoning regulations for the grant of a special permit may be general in nature." (Citations omitted; internal quotation marks omitted.) Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 521-22, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). There must, however, be substantial evidence in the record to support the conclusion that the general conditions of harmony with the neighborhood would be violated, such as was found by the Commission in this case.
Furthermore, "courts should be particularly reluctant to uphold [the] denial of special permits based on reasons supported only by general regulations since the special permit process is itself an end run around the uniformity concept. Without a strict construction, the agency can in affect arbitrarily deny any application based on broad statements and claims that it is contrary to the public interest or detrimental to the area. Arbitrary action is easily disguised under such superficial terms." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.4, p. 250.
There is, nonetheless, a recognized "trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations. (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020 (2002). Moreover, "[t]he zoning agency reviewing a special permit has greater authority to consider whether the proposed use is consistent with the plan of development . . . [when] the special permit regulations . . . refer to the plan of development . . ." (Emphasis in original) R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.4, p. 249. In the case before the court, the findings required for a special permit include compliance with the Westbrook Plan of Development. See zoning regulation § 7.50.02.
B. Review of Site Plan Applications
A zoning commission's authority under General Statutes § 8-3(g) permits the commission to consider information necessary to ensure compliance with the site plan application. See R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 477, 778 A.2d 61 (2001). "Where the agency, which is generally the zoning commission, acts upon a site plan application, it acts in an administrative capacity. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.5, p. 166." Borden v. Planning Zoning Commission, 58 Conn.App. 399, 408, 755 A.2d 224 (2000). "The question for the agency and the Superior Court on appeal, is whether or not the application submitted conformed to the agency's regulations." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.5, pp. 253-54. Therefore, the review of site plans appears more ministerial than discretionary.
"A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use. The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997).
C. Review of Coastal Area Management Applications
The power of a local zoning commission to require that an applicant file a coastal site plan and reject or impose conditions on its approval is derived from the Coastal Management Act, General Statutes § 22a-90 et seq. General Statutes § 22a-109(a) requires a coastal site plan to be filed with the municipal zoning commission in order to insure conformity with both municipal zoning regulations, and the provisions of the Coastal Management Act. "The [A]ct authorizes local zoning commissions to undertake a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." (Internal quotation marks omitted.) Dean v. Zoning Commission, 96 Conn.App. 561, 562, 901 A.2d 691 (2006); see also Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 359, 925 A.2d 297 (2003).
General Statutes § 22a-109(a) provides in relevant part: "A coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure or shoreline flood and erosion control structure . . . fully or partially within the coastal boundary, with the specific provisions of the zoning regulations of the municipality and the provisions of sections 22a-105 and 22a-106.
A zoning commission acts in an administrative capacity with respect to review of a coastal site plan. Pinchbeck v. Planning Zoning Commission, 69 Conn.App. 796, 800, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). The local zoning commission's review of the coastal site plan is conducted "solely on the basis of the standard, municipal planning and zoning regulations." Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 356, 832 A.2d 611 (2003).
Westbrook has established a separate Planning Commission, which has adopted a Master Plan of Development with a Municipal Coastal Program.
IV. DISCUSSION A. Use Variance and Special Permit
On December 20, 2006, the Westbrook ZBA unanimously granted an expansion of DGG's use variance to build the new villa complex at Water's Edge. A Coastal Area Management application was similarly approved by the ZBA. However, the zoning commission subsequently denied DGG's application for a special permit and coastal area site plan for the same new villa construction project. DGG argues that the ZBA decision to allow the use variance was not appealed by an aggrieved party and should foreclose a contrary determination by the zoning commission on the application for a special permit. The court finds this argument to be unavailing.
Pursuant to the zoning regulations, the ZBA's authority to vary the application of the zoning regulations is subject to the zoning commission's authority to grant special permits. See §§ 12.20.01b, 7.10.01 and 12.22.04. Vesting special permit authority in zoning commissions is not unusual, as this procedure reflects the majority approach in Connecticut municipalities. R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 3.7, p. 38. Although the ZBA and zoning commission differed in their conclusions concerning the new villas at Water's Edge, the zoning commission's review of a special permit involves different regulatory considerations when compared with the ZBA's review of an application for a variance.
"A special permit differs from a variance because a special permit allows a use specified in the regulations subject to conditions contained in them while a variance allows a use which is otherwise not allowed by the zoning ordinance. A special permit is considered generally compatible with the zoning district, but requires review and approval by a land use agency under standards in the zoning regulations to determine that it is consistent with uses permitted as of right in the district. In recent years, zoning commissions have often required the submission of a site plan application as part of a request for a special permit in accordance with zoning regulations. This then results in the option of more individualized treatment of a particular parcel or structure, but within the legal limits of regulation through zoning.
"The rationale for a special permit (or special exception) is that while certain specially permitted uses are generally compatible with uses permitted as of right in particular zoning districts, their precise location and mode of operation must be regulated because of topography, traffic problems, neighboring uses, etc. of the site." Id. p. 39.
In comparing the zoning regulations' requirements for variances and special permits, the court finds that the special permit regulatory scheme to be broader in scope and more detailed than the regulatory scheme for variances. Therefore, the court does not find it necessarily inconsistent for the zoning commission to reject what the ZBA had previously approved.
B. Substantial Evidence Supports the Zoning Commission's Decision
DGG claims in its appeal that the zoning commission failed to meet the substantial evidence test to support its reasons for a denial of the special permit application. The court disagrees.
The zoning commission denied DGG's application during a regular meeting held on July 24, 2007. According to the minutes of this meeting, members of the zoning commission discussed problems with the height of the proposed new villas and the methodology of the height calculation. Members also discussed the concerns and recommendations of the zoning commission's expert, Purcell Associates, and whether they should be made a condition of the application approval. Following this discussion, the application for a special permit and site plan were denied and the coastal area management site plan was separately denied without prejudice, each citing seven reasons on the record. The court will begin its analysis with the zoning commission's denial of the special permit.
The zoning commission received a communication from its expert, Purcell Associates, in a letter dated July 20, 2007. This letter formed the basis, in part, of the zoning commission's denial, (Return of Record 15.) and is dated long after the closing of the public hearing and immediately prior to zoning commission's denial of the application. Therefore, DGG claims it was unable to formally respond to these recommendations and concerns. However, DGG has not claimed the information relied on by Purcell Associates was not previously presented at the public hearing on this matter. See Norooz v. Inland Wetland Agency, 26 Conn.App. 564, 573-74, 602 A.2d 613 (1992).
1. Special Permit
The court finds there is substantial evidence in the record supporting the zoning commission's conclusion that the new villas are inconsistent with the Westbrook Plan of Development and the HDRD zone, which is a proper consideration under the zoning regulations, discussed supra. The planning commission's determination that the new villas project was inconsistent with the Master Plan of Development was initially based upon the superficial and undisputed determination that the Water's Edge Resort already involved a nonconforming use, further extended by variance. In a letter to the zoning commission dated March 21, 2007, the planning commission concluded that the new villa proposal was "not in conformance with the Master Plan of Development. It is a very commercial use in an otherwise very residential area." (Return of Record 5.)
However, the planning commission's analysis did not end with this simple statement of the obvious fact that a commercial resort facility is inconsistent with a high density residential zone. The planning commission noted that the proposed new villas would be the largest villa complex on the property. While clearly recognizing the Water's Edge resort as a long-standing use that has added value to the community, the planning commission's letter went on to cite numerous concerns that, if addressed, would make the proposed development more compatible with its residential neighbors.
Of particular concern to the planning commission was the height and length of the new villas building. This was of particular concern to the planning commission because of its proximity to the adjacent single-family residential property. The planning commission commented that "[w]hile the location complies with the side yard setback for the zone in which it is located, that setback was established for residential to residential uses. It is not a sufficient buffer for the intense impact of a commercial building of this size. This is a 150 foot long, 3+ story tall facade 15 feet from a residential property line. If this building were proposed in a zoning district where it is permitted, the required setback would be larger and buffering would be required." (Return of Record 5.) Based upon these concerns, the planning commission recommended that "[e]ither the water side unit should be stepped back or the entire villa complex should be moved to the east." (Return of Record 5.)
The court finds there is substantial evidence in the record supporting the first three reasons for the zoning commission's denial of DGG's application for a special permit. Although the new construction is consistent with DGG's use variance for a hotel, a review of the record reveals the new villas proposed appearance to be inconsistent with other villa structures at the Water's Edge Resort and they are entirely inconsistent with the existing construction located within the neighboring HDRD zone. See Return of Record 16, 9j and 9p. Furthermore, the existing villa structures are much further removed from the shoreline than the beach house proposed to be replaced in this case, making the inconsistency with neighboring architecture that much more appreciable.
In addition to expressing concerns over the height and incongruous nature of the new villas project, the third conclusion of the zoning commission highlights its finding that DGG did not established that the proposed use will not depreciate adjacent property values. This is a specific requirement of § 7.50.04 of the zoning regulations that the zoning commission found DGG failed to meet in its application and supporting evidence. See zoning regulations § 7.50.01. Although there is effusive evidence in the record to support the conclusion that Water's Edge is of immense value to the community as a world-class resort, there is little, if any, evidence in the record to support the conclusion that the new villas project "will not depreciate adjacent property values."
Section 7.50.04 of the zoning regulations provides in relevant part: "The proposed use will not depreciate adjacent property values and the size and height of all proposed buildings and the extent of all proposed site improvements shall both be of such as to harmonize with the existing character of the neighborhood in which such use is to be established." (Return of Record 21.)
Section 7.50.01 of the zoning regulations provides in relevant part: "A Special Permit shall not be granted until the Commission has determined that all of the following conditions have been satisfied. It is the responsibility of the applicant to provide plans and reports which describe the proposed development's conformance with the requirements of this Article, including all of the information in this Section."
The fourth conclusion of the zoning commission is the failure to meet "all applicable provisions of the zoning regulations." As the plaintiff argues, this is a vague, "catch-all" basis for the denial. Although the zoning commission has admitted that this fourth conclusion is a very general reason for the denial, it contends that this conclusion is supported by substantial evidence in the record. The court finds this to be the case for some, but not necessarily all of the zoning commission's claims.
The zoning commission has provided the Court with a more specific basis for its fourth conclusion in its brief opposing the appeal. Although many of the alleged violations appear to be minor in nature and may have been more appropriately made conditions of granting the special permit, the court will not second guess the ultimate conclusion of the zoning commission in this case, especially since the court has concluded that that there is substantial evidence in the record to support the zoning commission's primary conclusion that the new villas project is inconsistent with the Model Plan of Development and the HDRD zone, given the bulk and height of the structure(s). Since the applicable standard of review requires that only one basis for the denial be upheld on appeal, Hoagland v. Zoning Board of Appeals, 1 Conn.App. 285, 290, 471 A.2d 655 (1984), the court need not specifically address the myriad of arguments either supporting or diminishing this fourth conclusion. The court is satisfied that there is sufficient evidence in the record to support the conclusion of non-compliance with a number of the zoning regulations, discussed below.
In the zoning commission's brief, it claims that DGG did not satisfy all applicable provisions of the zoning regulations in the following respects. "The Application violates the Regulations in several respects, all of which are supported by the record, including: violation of notice requirements to abutters (ROR 21, §§ 6.20.03 7.40.00); violation of the HDRD area regulations ( Id., § 4.33.00 . . .); violation of minimum frontage requirement ( Id., § 4.33.03 . . .); failure to delineate soil types on site plan ( Id., § 6.30.02(c)); failure to delineate applicable zoning district(s) on abutting properties on site plan ( Id., § 6.30.02(d)); failure to provide tabular calculations for HDRD ( Id., § 6.30.02(f), ROR 9h); failure to comply with site plan landscaping requirements ( Id., § 6.30.02(k) (failure to properly locate and identify species and provide number of annuals); see ROR 9i); failure to show intensity of exterior lighting in lumens ( Id., § 6.30.02(m), ROR 9i (bollard light measure in watt)); failure to provide proper soil erosion and sediment control plan ( Id., §§ 6.30.02(n), 11.40.00); failure to comply with the POD ( Id., § 7.50.02 . . . ); failure to comply with orderly development requirement ( Id., § 7.50.03 . . .); failure to demonstrate that project will not impair property values or character of neighborhood ( Id., § 7.50.04 . . .); failure to provide information concerning traffic congestion ( Id., § 7.50.06); failure to comply with landscaping and buffer requirement ( Id., § 7.50.08; ROR 9i); failure to satisfy utilities requirement concerning on-site wastewater ( Id. § 7.50.09); violation of building height requirement in HDRD ( Id. §§ 2.40.16 4.33.08); violation of parking requirements ( Id., § 10.01.01 (the plans comply only because they are in violation of § 4.33.00, requiring each principal use to be on its own lot)); violation of the coastal site plan review regulations ( Id., § 11.00.00)."
In its fifth basis for denial of the special permit, the zoning commission concluded that the application "will not comply with the height requirements of . . . the Westbrook Zoning Regulations." This conclusion is more complicated than it appears on its face. The new villas project is designed to be constructed on three separate concrete pads, each moving up the slope of the land adjacent to Long Island Sound. The new villas are built upon these three pads and are constructed in three stories above each pad. The three pads, and the new villas constructed upon them, are attached to one another by common walls and firewalls, with one common wall extending approximately 150 feet on the western side, facing the Kessler property. One of the issues raised by the zoning commission in this appeal is whether the new villas project is to be properly viewed as one or as three separate buildings.
The zoning commission noted in conclusion number five that "[t]he height of the proposed buildings, when raised by one foot, as noted in the report of Purcell Association, dated July 20, 2007, will not comply with the height requirements of Section 4.114.06 of the zoning regulations." (Return of Record 8.) This strongly infers that the zoning commission viewed the villas as three separate buildings, each exceeding the height requirements by one foot. DGG claims this admitted error is easily remedied by minor adjustments to the construction plans. (See Return of Record 19b p. 37.) If, on the other hand, the new villas project is viewed as one building, as zoning commission now suggests, the height requirements are then exceeded by approximately 20 feet.
There is ample evidence in the record to view the new villas project as either one or three buildings. For example, a review of the building plans shows no separation between the villa structures, notwithstanding the fact that they are built on three separate pads with three distinct rooflines. (See Return of Record 1.) The building plans also make reference to there being five floors, (Return of Record 1: "New Villas at Water's Edge Site Layout Plan" Map 4/6), as well as six floors (see Return of Record No. 9j), which would be consistent with being viewed as one building. Moreover, according to the Department of Environmental Protection's letter to the zoning commission, dated April 24, 2007, the new villas would be considered as one structure under FEMA construction standards. (See Return of Record 3.)
Although there may be "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.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008), citing Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5, on remand, 102 Conn.App. 863, 927 A.2d 958 (2007). As originally proposed and properly calculated, the new villas structures exceed the height requirements of the zoning regulations, as specifically found by the zoning commission.
If the new villas project is properly viewed as three distinct buildings by the zoning commission, the specific requirements of the zoning regulations may be met with minor adjustments to the plans, such as reducing the distance between floors. However, these minor adjustments would not address the larger issue raised by the zoning commission; namely, the inconsistency of the bulk and height of the proposed new villas, compared with structures typically found within the HDRD zone, especially on neighboring lots adjacent to the shoreline. The broken roof line of a gabled, three-story beach house is significantly different than a monolithic structure, stretching 150 feet, broken only by three rooflines, each approximately 35 feet from ground level escalating gradually from the sea.
At or near the conclusion of the March 27, 2007 public hearing on the application, the Chairman of the zoning commission indicated that he was a close neighbor to Kessler, who had previously testified at the hearing. The Chairman inappropriately suggested to Ms. Kessler that the project "is not going to move forward if you are not happy . . ." Obviously, this is not the lawful standard applicable to the approval or denial of special permit applications, or any other administrative action by a municipal agency. Although the law affords discretion in special permit application decisions, the discretion of the zoning commission may not be delegated to an individual citizen who may have an interest in the outcome. However, the court finds there is sufficient evidence in the record to remove the zoning commission's decision from this realm of concern suggested by the Chairman's reassuring words to Ms. Kessler. The record, instead, reflects a decision based upon substantial evidence presented by state and local officials, as well as the zoning commission's expert, regarding their professional concerns based upon lawful criteria.
2. Site Plan
In reviewing site plans, the zoning commission's consideration is more limited than in its review of special permits. To deny a site plan, there must be substantial evidence showing a failure to conform a proposed building use or structure with specific provisions of the zoning regulations. See Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997).
Here, DGG claims the record fails to show substantial evidence of non-compliance with the zoning regulation's site plan requirements. In support of its argument, DGG has focused the court's attention on several non-substantive reasons in the record supporting the zoning commission's sixth and seventh reasons for denying the application, which are that "the site layout plan is incomplete" and "is lacking in necessary site details" as set forth on the report of Purcell Associates, dated July 20, 2007. (See Return of Record 15.) Examples of minor and non-substantive reasons include: 1) the failure to identify sufficient shrubbery in the site plan between the new villa construction and the Kessler's property (the regulations merely require they be identified); 2) failure to specify the depth of cover over the storm infiltrator; 3) failure to provide sufficient grading and draining information; and 4) insufficient information concerning the retaining wall.
Despite what appears to be a thorough and professionally prepared site plan, the record supports the court's conclusion that several elements of the plan failed to conform to site plan requirements. For example, the Purcell Associates letter supports the conclusion that the site plan is missing some design calculations for the storm drainage system and grading information, especially as it relates to the evaluation of the soil erosion and sediment control plan. (See zoning regulations § 6.30.02(l) and (n).) Further, there was no indication of the intensity of exterior lighting, measured in lumens, which, in a HDRD zone, carries particular importance to neighboring property owners. (See zoning regulations § 6.30.02 (m).)
Section 6.30.02 of the zoning regulations provides in relevant part: "All site plans required under these Regulations shall be submitted with the following data . . . i) Location, size and design of existing and proposed storm drainage, including design calculations, soil types. Storm drainage system will be designed to a zero net increase in rate of off-site storm water runoff, as measured in C.F.S. . . . n) A Soil Erosion and Sedimentation Control Plan prepared in accordance with Section 11.40.00 of these Regulations." (Return of Record 21.)
Section 6.30.02 of the regulations provides in relevant part: "All site plans required under these Regulations shall he submitted with the following data . . . m) Location and intensity of all proposed exterior lighting. Intensity shall he measured in Lumens." (Return of Record 21.)
"A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, supra, 46 Conn.App. 570. In this case, the court will not substitute its judgment and hold that it would have been preferable to modify or conditionally approve the site plan, especially in light of the more substantive concerns identified by the commission in its denial, for which it has been determined by the court to be supported by substantive evidence in the record.
3. Coastal Area Management Site Plan
The coastal area site plan was submitted to the zoning commission along with the application, pursuant to General Statutes § 22a-109(a), to insure conformity with both municipal zoning regulations and the provisions of the Coastal Management Act. See Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 359, 832 A.2d 611 (2003); also see Dean v. Zoning Commission, 96 Conn.App. 561, 562, 901 A.2d 681 (2006). This single review process resulted in a separate denial of the Coastal Area Management plan, without prejudice. Although the decision of the zoning commission was rendered "without prejudice," the court considers this to be a final judgment for purposes of this appeal in light of the statutory provision deeming such applications rejected if not timely decided.
General Statutes § 22a-105(f) provides: "Notwithstanding the provisions of any other section of the general statutes to the contrary, the review of any coastal site plan pursuant to this chapter shall not he deemed complete and valid unless the board or commission having jurisdiction over such plan has rendered a final decision thereon. If such board or commission fads to render a decision within the time period provided by the general statutes or any special act for such a decision, the coastal site plan shall be deemed rejected. (Emphasis added.)
In support of its denial, the zoning commission considered comments from the Senior Coastal Planner at the Department of Environmental Protection (DEP). (See Return of Record 3.) In a letter dated April 24, 2007, the DEP cites "concerns with regard to the proposal's consistency with the policies and standards of the Connecticut Coastal Management Act [CCMA]. General Statutes §§ 22a-90 through 22a-112. In particular, we are concerned with
the location of a portion of the southern-most villa within a high velocity flood zone and the need to construct to V-zone standards;
the potential for adverse impacts to views and vistas to result from the addition of new structures;
the adequacy of the existing onsite wastewater management system to accommodate the proposed new villa units;
the expansion of non-water dependent residential-type uses at the site and the potential inconsistency with the water-dependent use requirements of the CCMA; and
the location of stormwater infiltration practices within a coastal flood hazard area.
The DEP letter then goes on to explain the legal and factual basis for each of these bulleted concerns, including citations to state statutes and federal regulations. In reviewing the seven reasons cited by the commission for rejecting the coastal area management plan, the court finds that they are generally reflective of DEP's concerns as expressed in the detailed explanations provided to the zoning commission and substantial evidence supporting the zoning commission's decision to deny the coastal area management site plan without prejudice.
III. CONCLUSION
The decisions of the zoning commission appealed in this matter are affirmed.
General Statutes § 8-9, concerning appeals from planning and zoning commissions, makes reference to General Statutes § 8-8, which provides in relevant part at subsection (1): "The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from."