Opinion
No. CV 08 4008010
February 9, 2011
MEMORANDUM OF DECISION
BACKGROUND
The plaintiffs, Groton Open Space Association, Inc. (GOSA) and Anna Sullivan, appeal from the decision of the defendant, the Groton zoning commission (commission), which approved a special permit on December 5, 2007, to develop Mystic Woods, an active senior housing development project in Groton. A review of the record reveals the following facts. On May 1, 2007, the applicant, Hawthorne Development Partners, LLC (Hawthorne), filed a zoning special permit application seeking permission to construct the active adult community, a use which requires a special permit in the RU-20 zoning area pursuant to § 7.1-45 and § 8.1-5 of the Groton zoning regulations. The property is in a zoning area designated as RU-20. The site contains 104.84 acres of land. The project proposes clusters of 2-, 3- and 4-unit buildings on the upper plateau on the property, which is accessible by both Flanders Road and Fort Hill Road. The lower plateau on the property is made up of uplands and wetlands that buffer the Fort Hill Brook area, however, there is no proposed development in that area. The wetlands comprise 14.7 acres of the property.
RU-20 is a residential district, which may be used for, among other things, one-family and two-family dwellings, with conditions, and active senior housing, with conditions. Pursuant to the Groton zoning regulations, RU-20 districts require 20,000 square feet for a minimum lot size and 15,000 square feet per dwelling unit.
Section 7.1-45 of the Groton zoning regulations states that its purpose is to "provide for the construction of diverse alternative housing types to meet the needs of those active seniors age 55 and older, while providing for a balance and variety of housing types and styles, offering a wide choice to prospective residents and accommodating the needs of various income levels, at the same time recognizing the unique and special needs of the senior population and the need to protect existing neighborhood character in the [t]own of Groton." It also states that the regulations shall encourage "empty nester housing as identified in the Plan of Conservation and Development." It further requires active senior housing communities in RU-20 districts to gain approval of a special permit and adhere to several conditions:
A. The site and primary access thereto shall be located on a collector road or higher classification in the [t]own's system as shown in the Plan of Conservation and Development.
B. The minimum lot area shall be 15 acres in the RS-20 and RU-20 zones.
C. The minimum lot width shall be 250 feet.
D. The minimum lot area and square footage per dwelling unit shall be in accordance with the permissible density standards of the underlying zone.
E. In order to maintain consistency of project scale with its neighboring surroundings, the following restrictive product types shall be allowed . . . RU Zone: Product Type Single Family Detached, Duplex and Townhouse (maximum 4 units attached) . . .
F. No building containing a dwelling unit or related facilities shall be located within 75 feet of any property line or within 150 feet of any existing residential structure in an R, RU, or RS zone, except in the case of individual, single family detached units or duplex units when the setback may be reduced by the Zoning Commission if the Commission finds that it will enhance the project and not adversely affect neighboring properties. In no event shall the setback from a property line be reduced to less than the required setback for the underlying zone. This section shall not supersede other, more restrictive requirements and standards of the Zoning Regulations.
G. The maximum coverage of all buildings on the lot shall not exceed 20%.
H. Active Senior Housing Communities are intended for senior citizens and shall be restricted to persons 55 years of age and older subject to the following exceptions:
If a couple resides in one unit, one member of the couple must meet this age requirement. At any time, the total number of dwelling units occupied by persons under 55 years of age cannot exceed 20% of the total number of units. The community or facility is responsible for submitting verification of this requirement annually to the Town of Groton Zoning Official.
Active Senior Housing shall meet all requirements of the United States Federal Fair Housing Act, as amended . . .
I. The building height shall be regulated by the height requirements of the zone in which the facility is to be located, in accordance with 5.2 of these regulations.
J. The provisions of Section 6.7-6 shall apply to all Active Senior Housing Communities with the following exceptions . . . (3) Active Senior Communities may obtain reductions or waivers from the other requirements of Section 6.7-6 in accordance with the provisions of Section 6.7-6L.
K. The community shall be designed to promote mobility and socialization of residents with each other and throughout the community, provide appropriate facilities and amenities, as noted herein, for the intended community, and provide for a variety of common and shared spaces. The development shall encourage open space development patterns to preserve meaningful open space.
L. A community building . . . shall be provided at a minimum ratio of 20 square feet per unit . . . Other outdoor areas required under Section 6.7-6G shall be designed for socialization, including sitting areas, game and recreation areas. In no case shall the community building . . . be less than 2000 square feet in size.
M. Active Senior Housing, shall at a minimum, meet the following residential unit development standards: (1) The required percentage of residential units and all common spaces shall conform to requirements for accessibility in accordance with the Connecticut Building Code[;] (2) All units shall be designed to be able to easily be converted to provide for handicapped accessibility to the individual unit if needed in the future, such as easily converted to allow for a ramp or level access to the units[;] (3) Universal Design Features shall be incorporated into the site and building design . . .
N. Parking shall be provided in accordance with Section 7.2-3A and/or B as the case may be. Spaces shall be located within 200' of the dwelling units and shall not exceed 5% in grade unless otherwise approved by the Planning Commission.
The proposed development will consist of privately owned condominiums, which will be maintained by an association of unit owners. The application proposed 211 units; however, this was changed to 201 units. Hawthorne proposes to provide a conservation easement to the town for 44.66 acres of the property, to be preserved in its natural state and provide natural walking paths. Hawthorne also proposes to grant an additional 0.76 acre easement to the town for pedestrian paths.
The commission published notice of the public hearings in The Day, a New London area newspaper. A public hearing was held on September 19, 2007, wherein Hawthorne's attorney, Harry Heller, along with several consultants, presented the project. Several neighbors and members of the public also advocated their concerns about the project. The public hearing was continued to October 15, 2007, wherein Hawthorne presented several revisions to the application and expert consultants. The plaintiffs intervened on October 15, 2007, pursuant to General Statutes § 22a-19(a), by filing notices of intervention and claimed that the project will unreasonably harm the environmental and natural resources on the site. The plaintiffs made the following claims: (1) Flanders Road will harm the vernal pool in wetland 11 and the amphibians that breed therein, along with the danger of amphibians being killed while crossing the road; (2) the stormwater system could act as a decoy and harm the amphibians; (3) the project will impact the flood zone surrounding Fort Hill Brook, and the neighboring properties, including Mumford Cove; and (4) the other wetlands on the site may be damaged by the intense development required by the project. The final public hearing was held on November 7, 2007.
On December 5, 2007, the commission deliberated, voted on and approved the special permit application with conditions. According to the meeting minutes, the commission made seven findings along with its approval and conditions. In its findings, the commission noted that: (1) it reviewed the inland wetlands commission's permit and permit conditions; (2) it reviewed the deliberations of the inland wetlands commission that took place on September 12, 2007, including its analysis of prudent and feasible alternatives and the finding with respect to intervention under General Statutes § 22a-19; (3) it recognized its limited authority under § 7.1-45 of the Groton zoning regulations; it also recognized that all of the proposed setbacks met or exceeded the applicable requirements, and the applicant had complied with § 7.1-45(M); (4) it had sufficient information in the record to determine compliance with the special permit criteria under § 8.3-8 and the intervention petitions, and noted that the intervention petitions rely on § 8.3-8(C) and only reference the other two criteria; (5) it considered the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state, pursuant to General Statutes § 22a-19, and found that "in approving the special permit as conditioned herein, no conduct will be authorized or approved which does have, or is reasonably likely to have the effects alleged in the intervening petitions." The commission further found that the special permit application, including the applicant's proposal to make traffic improvements at Route 1 and Flanders Road, "complies with the special permit objectives of section 8.3-8B." Finally, it concluded that the application, as conditioned, "complies with the [s]pecial [p]ermit objectives of § 8.3 of the regulations." Notice of the commission's decision was published in The Day on December 12, 2007.
The conditions of approval were:
1. The special permit will be expressly limited to no more than 201 active senior housing dwelling units, with occupancy restricted per the draft common interest declaration and including ancillary uses and structures as proposed.
2. The conservation area shall be protected through a conservation easement in favor of the Town of Groton[.]
3. The sewer line shall be sized with additional capacity sufficient to serve other areas within the approved and/or planned sewer service area. The owner(s) shall provide as easement to the Town for ownership, use and maintenance of the sewer main.
4. Buildings 62, 62a, 68, 72, and 73 shall be relocated and/or eliminated in accordance with the applicant's proposal of 11/7/07.
5. The access drive to Route 1 shall be limited to use by emergency vehicles and pedestrians at all times.
6. No building shall be located within 100 feet of the property lines identified in the attached exhibit.
The plaintiffs filed this appeal on January 14, 2008, and appropriately and timely served process on the defendants on December 21, 2007. The plaintiffs allege that they represent the public trust in the environmental and natural resource areas on and proximate to the subject parcel of land and that (1) the proposed development violates the density limits for an RU-20 district and will not be in harmony with the orderly development of the district, in violation of § 8.3-8(A) of the Groton zoning regulations; (2) the proposed development will be detrimental to adjacent properties; (3) the proposed development will be incongruous with the traffic circulation of Flanders Road and will conflict with the normal traffic of the area, in violation of § 8.3-8(B) of the Groton zoning regulations; (4) the access road to the development is adjacent to a high quality vernal pool and will have a negative impact on the "environmental natural resource area," in violation of § 8.3-8(C) of the Groton zoning regulations; (5) the commission improperly allowed its staff to make legal conclusions about the criteria set forth in § 8.3-8, which is the commission's duty; and (6) the commission's decision was illegal, arbitrary, capricious and failed to conform to the requirements within the Groton zoning regulations. The plaintiffs further allege that the commission made improper modifications to the application by requiring an increased buffer area, when it instead should have "[sent] the application back for a rehearing and reconsideration," and that the commission failed to determine that feasible and prudent alternatives exist for the project, with regard to the density and traffic alignment. The plaintiffs filed a brief in support of their appeal on May 30, 2008, and a reply brief on June 1, 2010.
The commission filed an answer and return of record on March 31, 2008, and supplemented the return of record on February 13, 2009. Hawthorne filed a brief on February 9, 2009. The commission filed its brief on April 26, 2010.
In this memorandum the Groton zoning commission is referred to as the defendant. On August 5, 2010, Colebrook Financial Company LLC (Colebrook) moved to be added as a party defendant. Colebrook was the mortgage holder of the property, as it was the mortgage lender to Glemacy Builders, LLC, the previous owner of the subject property. On July 21, 2010, the property was foreclosed upon and conveyed to Colebrook, and it is now the owner of the subject property. Hawthorne had entered into a purchase and sale agreement with Glemacy Builders prior to the zoning application. The change in property owners of the subject parcel has no bearing on this appeal, as permit applications run with the land and not with the applicant or landowners. See Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 802, 804-06, 631 A.2d 347 (1993).
DISCUSSION
I
WHETHER THE PLAINTIFFS HAVE STANDING UNDER GENERAL STATUTES § 22a-19 AND § 8-8
General Statutes § 22a-19 provides, in relevant part: "In any administrative, licensing, or other proceeding, and in any judicial review thereof made available by law . . . any person, partnership, corporation, association, organization, or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involved conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state." Section 8-8(a)(I) defines "aggrieved person" and provides that it includes "a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of land involved in the decision of the board."
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) JZ, Inc. v. Planning Zoning Commission, 119 Conn.App. 243, 246, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010). "Aggrievement presents a question of fact for the trial court . . . [T]he party alleging aggrievement bears the burden of proving it." (Citation omitted; internal quotation marks omitted.) Id., 246-47. "A plaintiff may prove aggrievement by testimony at the time of trial . . . or by the production of the original documents or certified copies from the record." (Citations omitted; internal quotation marks omitted.) Green Falls Associates, LLC v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 07 4008582 (October 28, 2010, Purtill, J.T.R.). When a party has filed notices of intervention at the commission hearings in accordance with General Statutes § 22a-19, it has standing to appeal the environmental issues associated with that commission's decision. Finley v. Inland Wetlands Commission, 289 Conn. 12, 34-35, 959 A.2d 569 (2008); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 714-15, 563 A.2d 1339 (1989). "That appeal, however, is limited to raising environmental issues only . . ." Mystic Marinelife Aquarium, Inc. v. Gill, CT Page 4869 175 Conn. 483, 490, 400 A.2d 726 (1978).
Here, GOSA has intervenor status pursuant to General Statutes § 22a-19 because it filed the notice of intervention with the commission in October of 2007. The notice of intervention states that GOSA is a nonprofit corporation established for the conservation and environmental preservation of "open spaces and passive recreational areas in Southeastern Connecticut," educating the public about the value of environmental preservation and that its mission includes protecting inland wetlands and watercourses, along with the associated wildlife and vegetation. The notice also describes the proposed project and the plaintiff's concerns about the project's affect on the wetlands, amphibians and negative impacts to the flood zones. Although GOSA has standing to bring the present appeal, it is found then that GOSA may only appeal the environmental aspects of the decision.
In the complaint, the plaintiffs allege that they have standing to appeal pursuant to § 22a-19 because they intervened in the underlying proceedings. They also allege that they "are aggrieved by the Commission's decision within . . . § 22a-43(a)." However, § 22a-43 concerns appeals from an inlands wetlands commission, not a zoning commission. Accordingly, it is inapplicable in the present case.
The other plaintiff, Anna Sullivan, has statutory standing to bring this appeal under § 8-8(a)(I) because she owns property, at 81 Flanders Road in Groton, that abuts and is within one hundred feet of the subject parcel. As she has statutory standing, she may appeal all of the aspects of the commission's approval of the special permit.
II
WHETHER THE TOWN STAFF EXCEEDED THE SCOPE OF ITS DUTIES IN ASSISTING THE ZONING COMMISSION
The plaintiffs argue that the commission improperly relied on its staff in approving the special permit application. The plaintiffs contend that Michael Murphy, director of the Groton office of planning and development services, instructed rather than advised" the commission during the December 5, 2007 deliberations with regard to several issues. Specifically, the plaintiffs allege that: (1) Murphy incorrectly advised the commission concerning the density of the project; (2) Murphy misled the commission to believe that it "could not exercise discretion and responsibility under the special permit standards" and (3) Murphy's advocacy "had the clear effect of reversing the views of three members of the [c]ommission who became the majority thereof . . ." The plaintiffs further allege that Murphy failed to properly advise the commission on the harmony analysis, failed to present the counter arguments that the density requirements require under the Groton Plan of Conservation and Development (POCD) and failed to properly advise the commission as to the proper buffering and the orderly development objectives.
During the deliberations meeting, the transcript shows that Murphy advised the commission that the density of the proposed project meets the density standard requirements in the zoning regulations. The plaintiffs argue that this conclusion was for the commission to make, not the staff. The plaintiffs contend that the commission relied on this argument by Murphy and, in so doing, failed to make the evaluations necessary under § 7.1-45. The plaintiffs reason that the density is not, in fact, two units per acre because the commission must first subtract the amount of land that consists of wetlands and steep slopes from the total property size, as the applicant cannot build upon that part of the property. Once that amount of land is subtracted, the total land is not 104.84 acres. Rather, it is forty-seven acres, which results in four units per acre, and allegedly violates the RU-20 zoning density requirements of two units per acre. Ultimately, the plaintiffs argue that Murphy's advice was not neutral, but was advocacy for a specific applicant's proposal.
The plaintiffs essentially argue that the commission failed to make independent judgments on the special permit application.
In response, the commission argues that the court may only review the collective statement of the commission's decision, and cannot seek to determine its "thought processes or what individual members may have been thinking when they made the decision to approve the permit. It argues that the court must read the transcript and accept the reasons provided in the transcript for its approval of the permit. The commission further argues that the record does not support the conclusion that it was unduly influenced because it was presented with expert testimony from both the applicant's consultants and independent consultants hired by the commission, and a thorough discussion took place at the December 5, 2007 meeting as to concerns and possible alternatives to the permitted activities. The commission maintains that the purpose of having a staff is to review complex applications and provide suggestions. It contends that zoning boards have the right to use such expertise.
"[Z]oning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise; Yurdin v. Town Plan Zoning Commission, 145 Conn. 416, 421, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S.Ct. 155, 3 L.Ed.2d 121; and that such assistance may be rendered in executive session. Kyser v. Zoning Board of Appeals, 155 Conn. 236, 250, 230 A.2d 595." Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974). It is established, however, "that the statutory scheme for the resolution of permit applications envisions that the authorized agency shall be the decision maker. While the agency may seek advice and assistance from a professional staff, it is the agency itself that must find the facts and apply the statutory criteria to those facts." Laufer v. Conservation Commission, 24 Conn.App. 708, 713, 592 A.2d 392 (1991).
In School Properties Associates v. Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket Nos. CV 91 0119690, CV 91 0119691 (September 28, 1999, Lewis, J.), the defendant commission approved the plaintiff's application with conditions, and only allowed twenty-five units to be constructed on the subject parcel. The plaintiff appealed and argued, inter alia, that the commission inappropriately delegated the duty of deciding the application to its staff and merely "rubber stamped" the staff's work by adopting the staff's draft findings and draft resolution. Id.
The court dismissed the plaintiff's appeal and found that substantial evidence existed in the record to support the commission's decision. First, the staff director testified that it was standard practice for the staff to prepare draft findings and resolutions for the commission, and that the commission was free to change those drafts. Second, a great deal of discussion occurred at the three public hearings held on the application at issue, the transcripts of which accumulated nearly 300 pages. The court noted that, although there was little discussion by the commission when the draft findings were adopted and the draft resolution was voted on, that did not constitute evidence that the commission "rubber stamped" the work of its staff. Id. The court found that there was nothing illegal or inappropriate about the fact that the staff prepared drafts and the commission adopted them, and noted that "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Id.
In the present case, the commission utilized both its professional staff and outside consultants because of the complex nature of the application. The record clearly indicates that the commission utilized its staff and consultants appropriately and did not simply adopt the staff's suggestions. There were three public hearings on the application, wherein lengthy discussion ensued, the transcripts of which equal more than 400 pages. Further, the commission engaged in a lengthy discussion on December 5, 2007, wherein the staff provided assistance and advice. During the December 5, 2007 deliberations meeting, Murphy and Matt Davis, manager of Groton planning services, pointed out the findings of the traffic studies and expert testimony. Murphy and Davis further advised as to the commission's authority in setting conditions in special permit applications and the basis needed to set conditions. Murphy advised the commission that the buildable area is irrelevant to the density issue, i.e., the commission does not change the equation of density units per acre based on the amount of land that the developer is actually building on; rather, it must look at the total parcel. They also advised the commission as to making the condition of limiting Fort Hill Road to emergency vehicle use; and the commission's jurisdiction over certain issues, e.g., the stormwater design, and the findings already made by the Groton inland wetlands commission. The staff members did not instruct the members of the commission how to vote for the application.
As was the case in School Properties Associates v. Conservation Commission, supra, Superior Court, Docket Nos. CV 91 0119690, CV 91 0119691, the fact that the commission may have accepted the staff's advice or adopted the staff's motion is not illegal or inappropriate in the present case, so long as the commission made the ultimate findings of fact and decision. The lengthy discussion in the public hearings together with the fact that the commission made several amendments to the staff's findings and independently reviewed and voted on approval of the special permit application demonstrate that the commission was not unduly persuaded by its staff in approving this application. There is no evidence in the record to support the plaintiffs' contention that the staff inappropriately or unduly instructed the commission to approve the application. It must, therefore, be found that the commission's staff did not inappropriately persuade the commission in its decision. The commission reviewed and relied on their personal experience on the traffic amendment, along with the expert testimony presented on the harmony and environment factors.
III
WHETHER SUBSTANTIAL EVIDENCE EXISTS IN THE RECORD TO SUPPORT THE COMMISSION'S DECISION
A
Whether the Commission's Decisions after the Close of Public Hearings were Inappropriate
The plaintiffs argue that the commission's decision to reconfigure the traffic circulation system in the plan and to change the boundary lines of the project were arbitrary because the impacts of those changes are unknown and the commission could have denied the permit on that ground. Hawthorne argues that the changes were not arbitrary and are in fact supported by the evidence presented at the public hearings.
Proceedings before zoning authorities are informal and conducted without strict adherence to the rules of evidence. Grimes v. Conservation Commission, 243 Conn. 266, 276-77, 703 A.2d 101 (1997); Magnano v. Zoning Board of Appeals, 188 Conn. 225, 229 n. 4, 449 A.2d 148 (1982); Pizzola v. Planning Zoning Commission, supra, 167 Conn. 207. Such proceedings cannot violate notions of fundamental fairness. See Pizzola v. Planning Zoning Commission, supra, 167 Conn. 207. Fundamental fairness requires "that the parties involved have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence. The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal . . . Not to do so would deny those opposing the application the right to be fully apprised of the facts on which the board is asked to act." (Citation omitted; internal quotation marks omitted.) Pizzola v. Planning and Zoning Commission, supra, 167 Conn. 207.
The plaintiffs argue that the decision by the commission to modify the main drive of the development, by limiting it to emergency vehicles and pedestrians, is arbitrary. In their reply brief, they argue that the traffic amendment "constitutes a new and unexamined degree of traffic intensity directly adjacent to the environmentally sensitive wetland #11 vernal pool complex," in violation of § 8.3-8(C). They argue that this "eleventh hour revision" completely contradicts the inland wetlands commission's decision because it had rejected Flanders Road as the main road for the development, which demonstrates that the commission did not know what it was doing and that its decision was arbitrary. The plaintiffs claim that, because the post-record revisions never articulated the impact of the increased traffic intensity on the environmental resource of wetland #11, the commission did not comply with § 8.3-8(C) and therefore had no basis to conclude that its conditions would not cause harm to the environment.
Hawthorne argues that the traffic amendment was not arbitrary and that there is evidence in the record to demonstrate that the commission did take into account the environmental impact of making Flanders Road the primary road for residents. Hawthorne points to the report by REMA Ecological Services, which states that any impact to the wetlands will be minimized due to a dense shrub and vine thicket which lies in between the road and the vernal pool. (See ROR, Item 1(a).) Hawthorne points out that when that report was written, the buffer between the road and the wetland was only forty feet, and the plan has been revised to provide for a 120-foot separation between them. Further, Hawthorne argues that the commission was presented with substantial evidence that the use of Flanders Road will not adversely affect the wetlands and will not negatively affect the traffic conditions in the area.
A commission may make decisions based on actual personal knowledge and factual evidence. Loring v. Planning Zoning Commission, 287 Conn. 746, 760, 950 A.2d 494 (2008). "Unlike judicial proceedings, [however,] an administrative board may act upon facts which are known to it even though they are not produced at the hearing." (Internal quotation marks omitted.) Grimes v. Conservation Commission, supra, 243 Conn. 276. According to Groton zoning regulations § 8.3-9, the zoning authority may approve, modify and approve or disapprove a special permit application. Further, it must take into account traffic conditions as part of its review under Groton zoning regulations § 8.3-8(B).
In Pizzola, the applicant applied for a zone change for his property. Pizzola v. Planning Zoning Commission, supra, 167 Conn. 203. One public hearing was held, wherein several people voiced opposition to the application, and the discussion centered on traffic conditions and a possible hazard that might result from the proposed change. Id., 203-04. After the hearing, the commission requested two traffic reports from the applicant; a survey and a report prepared by the applicant's consultant. Id., 204. The reports were given to the commission in executive session, outside of the purview of the public. Id. The commission considered these reports and granted the application. Id. On appeal to the Superior Court, the plaintiffs argued that it was improper to request a report and receive it in executive session, as opponents of the application did not have an opportunity to review the report, cross-examine the consultant who drafted the report or present evidence in rebuttal. Id., 206-07. The trial court held that the commission improperly requested the report without allowing the opposing parties time to review and refute it. Id., 207. The Supreme Court upheld the trial court's decision, noting that a commission cannot receive, ex parte, information without affording the opposition a chance to review and refute it. Id., 208.
In contrast to the facts in Pizzola, in the present case there were three public hearings and all parties had ample time to present testimony and concerns about the project. In the three public hearings, the parties had a chance to review the traffic reports of Hawthorne's consultant, Bubaris Traffic Associates, as that report had been previously submitted in the wetlands hearings. While Bubaris did submit a second report, Jim Bubaris, an engineer, testified that the second report was basically the same report but that it also contained sources for the data used, as had been requested by the town's consultant, Camp, Dresser McGee. Further, the commission questioned Hawthorne and its consultant, Bubaris, at length about the proposed traffic plan and alternatives. The commission and Bubaris discussed eliminating the use of the proposed main road and its effects, which is also reviewed in Bubaris' report.
Within the commission's conditional approval of the special permit, condition five affects the traffic pattern, and it requires that the access drive to Route 1 be limited to emergency vehicles and pedestrians. During the deliberations meeting, the commission discussed changing the main development entrance and exit. Commissioner Haviland noted that this condition was to alleviate his concern about traffic and the potential for accidents based on his personal experience driving on that road. Other commission members also noted concern based on their personal experiences driving on that road. It is found that the commission acted reasonably when it conditioned the permit on limiting Route 1 to emergency vehicles and pedestrians, pursuant to § 8.3-9, based on personal knowledge of the conditions of the road and the expert testimony and reports presented at the public hearings. It must also be found that this condition did not violate fundamental fairness because the plaintiffs were present at the public hearings, had opportunities to question Bubaris and the town's consultant, Camp, Dresser, and McGee on their traffic concerns, reviewed the traffic report and had the opportunity to provide rebuttal evidence.
The plaintiffs argue that the commission's boundary condition, that "no building shall be located within 100 feet of the property lines identified in the attached exhibit," is arbitrary because the intended result of fewer units may not actually be achieved. They further argue that this the boundary condition will result in a "disorderly and jarring collision between the existing neighborhood and the proposed one," which violates the orderly development factor in § 8.3-8(A) of the Groton zoning regulations. They note that it was not the commission's job to try and "save" the applicant by imposing this condition.
This argument is not addressed by Hawthorne or the commission.
Section 8.3-9 of the Groton zoning regulations allows the commission to approve, modify and approve or disapprove a special permit application. Section 8.3-8(A) requires the commission to ensure that the development is in harmony with the orderly development of the district and that it will not be detrimental to the orderly development of adjacent properties.
In the deliberations meeting, Commissioner Haviland voiced his concern over the conformity with the neighborhood and the orderly development with the surrounding properties. Murphy suggested reducing the number of units to 201. Davis suggested that a buffer condition may be permissible and based on the need to comply with orderly development for harmony. Commissioner Haviland accepted this advice. Chairman Hudecek expressed discomfort with creating the condition of a buffer, but was advised by the staff that a buffer condition is allowed so long as there is a permissible reason for it in § 8.3-8.
Ultimately, it is within the commission's authority to set forth a condition on a special permit pursuant to § 8.3-9 of the Groton zoning regulations. The condition of a greater buffer was deemed necessary, from a review of the record, because of orderly development with the adjacent neighboring houses. The boundary condition is permissible under the Groton zoning regulations and is not arbitrary. It must, therefore be found that this condition does not violate fundamental fairness because additional information was not requested by the commission in executive session in making this decision, and it is within the commission's authority to make such conditions.
B
Whether the Proposed Project will Result in Harm to the Environment under General Statutes § 22a-19 or § 8.3-8(C) of the Groton Zoning Regulations
The plaintiffs argue that the project will harm the environment, in violation of § 8.3-8(C) of the Groton zoning regulations and General Statutes § 22a-19(b), and that the commission's review of the environmental impact was arbitrary. They claim that the wetlands and its vernal pools will be adversely affected by the construction of the access road. The plaintiffs point to a letter written by their ecological consultant, Penelope Sharp, which states that wetland 11 is of high quality and, as it supports amphibian life, is a vernal pool wetland. The letter also states that the vernal pool is used by spotted salamanders for breeding, and that the applicant's consultants have found in excess of 300 egg masses, making it "an important vernal pool." The letter concludes by stating that close proximity of the access road to the wetland "will likely have a negative impact upon future breeding activity."
Sharp did not present testimony at the zoning public hearings.
In support of their argument, the plaintiffs point to the deliberations meeting, stating that the commission failed to consider the impact of the increased traffic on wetland 11, which amounts to a failure to "make the required finding of no negative environmental impact as called for by the specific language in [s]ection 8.3-8(C)," and that failing to consider the effect of the modification on the environmental resources is, "by definition an arbitrary one, made on invalid reasons because it is inconsistent with the [s]ection 8.3-8 special permit standards." They argue that the commission's findings that the project is in compliance with the special permit factors and that there is no likelihood of unreasonable pollution, impairment or destruction of the public trust, were "premature" and "unsupportable" because the commission failed to analyze the impacts of its changes to the traffic circulation. Lastly, the plaintiffs argue that, because the inland wetland commission report is not a part of the record, the commission could not rely on that agency's findings, as it allegedly did in the commission's first two findings. They conclude by stating that the "whole decision of the defendant [z]oning [c]ommission may be void ab initio on that procedural ground alone, pursuant to [General Statutes] § 8-3(c)."
General Statutes § 8-3(c) provides: "All petitions requesting a change in the regulations or the boundaries of zoning districts shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the period of time permitted under section 8-7d. The commission shall act upon the changes requested in such petition. Whenever such commission makes any change in a regulation or boundary it shall state upon its records the reason why such change is made. No such commission shall be required to hear any petition or petitions relating to the same changes, or substantially the same changes, more than once in a period of twelve months."
That statute does not appear to be relevant to the plaintiff's contention. Section 8-3c(b), however, requires the commission, when deciding a special permit application, to delay "render[ing] a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency." The inlands wetlands agency rendered its final decision on September 12, 2007, and published its decision in The Day on September 21, 2007. The inlands wetlands commission's September 12, 2007 meeting minutes, which explain the conditions of approval of the application and its reasons for approval, are in the record.
General Statutes § 22a-19(b) states that an agency must "consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." The agency must focus on unreasonable pollution, impairment or destruction, and "[t]he question of what is reasonable is one of fact." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 503, 400 A.2d 726 (1978). Further, § 22a-19 "must be read in connection with the legislation which defines the authority of the particular administrative agency . . . [and was] not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues. Such a construction of § 22a-19 gives effect to its provisions and to the legislation that defines the scope of authority of an administrative agency." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 158, 788 A.2d 1158 (2002). When an intervention appeal pursuant to § 22a-19 is raised before a zoning commission, and not a wetlands commission, the zoning commission is limited to consider only the environmental issues that are otherwise within its jurisdiction. See Groton Open Space v. Groton, Superior Court, judicial district of New London, Docket No. 567343 (April 13, 2005, Purtill, J.T.R.). Inland wetlands activities are regulated by the local inland wetlands agency pursuant to General Statutes §§ 22a-42 and 22a-42a, not a zoning commission.
A zoning commission's jurisdiction is set out in General Statutes § 8-2(a), which provides that a zoning commission may regulate "the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses, as defined in section 22a-93," and that such bulk regulations may "allow for cluster development." It also provides that "[s]uch regulations shall also encourage the development of housing opportunities, including opportunities for multifamily dwellings, consistent with soil types, terrain and infrastructure capacity, for all residents of the municipality and the planning region in which the municipality is located."
Section 8-2(a) also allows the zoning commission to "divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land" and "may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals," and such special permit may be "subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." Accordingly, "[s]uch regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations may, to the extent consistent with soil types, terrain, infrastructure capacity and the plan of conservation and development for the community, provide for cluster development, as defined in section 8-18, in residential zones." Groton Zoning Regulations, § 8-2(a).
Section 1.1 of the Groton zoning regulations provides that the zoning commission's purpose is to "promot[e] the health, safety, and general welfare of the community; lessening congestion in the streets . . . facilitat[e] adequate provision[s] for transportation, water, sewerage . . . and other public requirements . . . and encourag[e] the most appropriate use of land throughout the [t]own . . . regulat[e] and [restrict] the location of . . . buildings designed for specific uses; regulat[e] and [limit] the height and bulk of buildings hereafter erected and regulat[e] and [determine] the area of yards, courts and other open spaces for buildings hereafter erected." Section 8.1 describes the zoning commission's enforcement authority, and provides that the zoning regulations shall be enforced by the zoning commission, who may cause "any building, structure, place or premises to be inspected and examined . . ." Section 8.3-8 of the Groton zoning regulations requires the commission to consider the impact of the proposed project to the environment and ensure that it will not "have a negative impact on any environmental and natural resource areas on or adjacent to the site or within the neighborhood."
In the present case, the commission found that there was sufficient information in the record to determine compliance under the special permitting criteria of § 8.3-8. It also determined that the project will not have the result of unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and found that there is no conduct within the special permit that has or is reasonably likely to have the effects alleged in the intervention petitions. This conclusion is supported by the evidence, as the commission heard testimony from several experts regarding the environmental impact by the project and reviewed the inland wetlands commission's findings and conditions. Attorney Harry Heller testified to this fact several times. Additionally, several expert consultants testified as to this issue. George Logan, an ecological consultant from REMA Ecological Services, testified that there would be no impacts on the wetlands, a conclusion also supported in their report. Andrew Bevilacqua, a civil engineer from Diversified Technology Consultants, testified on the increase in the separation between wetland 11 and Flanders Road. Robert Roseen, and engineer and the director of the University of New Hampshire Stormwater Center, testified that the stormwater treatment design will protect the wetlands and is an innovative and futuristic design. Further, the Groton inland wetlands commission found that the project would not have adverse consequences on the wetlands and natural resources.
The inland wetlands commission found that "Fort Hill Brook and its associated wetlands are unique and valuable resources deserving of enhanced protection. These resources are adequately protected for the long-term by the large non-disturbed area up slope from the brook and wetlands, the [c]onservation [e]asement as offered by the applicant and by the pollution attenuation of the stormwater management system." The inland wetlands commission also found that wetland 11 contains a tier one vernal pool. The inland wetlands commission further found that, "after consideration of the record, including testimony and other evidence from the applicant, the intervenors, the public and the staff . . . the regulated activities associated with the Mystic Woods Active Adult Community, as modified, do not have or are not reasonably likely to have the affect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state . . ."
It must also be found that the plaintiffs' contention that the commission failed to consider whether its changes will adversely affect the environment is unsupported by the record. The commission's first finding states that it reviewed the inland wetlands agency's permit, findings and deliberations, including the finding pursuant to General Statutes § 22a-19. The commission further found that the proposal, as modified by its conditions, will not have an adverse effect on the environment.
It must be found that the plaintiffs' contention that the inland wetlands commission's findings are not a part of the record is also without support in the evidence. As shown, the commission reviewed the inland wetlands commission's findings, which are in the record. As required, the commission appropriately reviewed and considered the inland wetlands commission's report. A "zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission's decision be based on the wetlands report;" it simply must consider the report in conjunction with its review. Arway v. Bloom, 29 Conn.App. 469, 479, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993). It is found that the commission appropriately considered all the relevant factors in determining that the proposed project will not violate § 8.3-8(C) of the Groton zoning regulations or General Statutes § 22a-19.
D
Substantial Evidence Exists in the Record to Support the Commission's Decision that the Application Meets the Requirements for a Special Permit
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756-57, 950 A.2d 494 (2008). "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 . . . The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." (Citations omitted; internal quotation marks omitted.) Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 111, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).
"[I]t is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the [zoning] regulations . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied." Raczkowski v. Zoning Commission, supra, 53 Conn.App. 636, 640. Where the zoning authority has stated the reason for its decision, the court is not at liberty to probe beyond them. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970); Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 53, 585 A.2d 703, cert. granted in part, 218 Conn. 909, 591 A.2d 811 (1991). "In applying the law to the facts of a particular case, the [agency] is endowed with liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary, or illegal." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). On appeal, the trial court reviews the record before the board to determine whether it acted fairly, with proper motives or upon valid reasons. Id. When even just one reason given by the administrative agency is supported by the evidence, the agency's decision must be affirmed. See Pizzola v. Planning Zoning Commission, supra, 167 Conn. 208.
Section 8.3 of the Groton zoning regulations provides the special permitting procedure. Section 8.3-8 provides the evaluation criteria which the commission must take into consideration when evaluating a special permit application, for the "health, safety and welfare of the public in general, and the immediate neighborhood in particular, and may prescribe reasonable conditions and safeguards to insure the accomplishment of the following objectives: (A) Harmony with Development: That the proposed use is of such location, size, and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties. (B) Traffic Circulation: That the location and size of such use, the nature and intensity of operations involved in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous or inconvenient, or incongruous with, any residential district or conflict with the normal traffic of the neighborhood. (C) Impact on Environment: That the location and size of such use, the nature and intensity of operations involved in connection therewith, and the site layout and development will not have a negative impact on any environmental and natural resource areas on or adjacent to the site or within the neighborhood."
The plaintiffs argue that the proposed project violates all three factors set forth in § 8.3-8. As to the first factor, the plaintiffs allege that harmony is not achieved because the density fails to comply, and the plaintiffs argue that the commission should only consider the actual land being built upon by the applicant, not the total amount of land in the parcel. They further argue that the commission failed to consider the implications of the modifications made, specifically the increase of the buffer between the proposed project and the neighboring properties.
The plaintiffs' other two arguments, that the project fails to comply with § 8.3-8(B), the compatibility with traffic patterns, and subsection (C), the compatibility with the environment, have been addressed infra and rejected, and will therefore not be further discussed. The plaintiffs argue that it is 201 units divided by forty-seven acres, which equals four units per acre, which violates the density standard requirement of two units per acre.
In response, Hawthorne argues that the commission properly concluded that the proposed project is in harmony with the surrounding area because the POCD recommends the property for a medium density residential development, which Mystic Woods is. Hawthorne maintains that the proposed project complies with the density requirement, as it is comprised of 201 units on 104 acres, which equals 1.95 units per acre and is less than the required two units per acre. Hawthorne notes that this is also in compliance with the RU-20 density requirements. Hawthorne further argues that this project (1) preserves contiguous open space under the conservation easement; (2) provides housing for a targeted population segment, the active aging community; (3) it will not prejudice or adversely affect the surrounding properties; and (4) it is consistent with the surrounding neighborhood because it is (a) architecturally consistent and (b) use consistent (as a residential use).
In the present case, the commission considered numerous factors and engaged in lengthy deliberations before reaching its decision to approve the special permit application, which is demonstrated in the transcript record of the deliberations meeting and spans fifty pages. The commission also participated in three lengthy public hearings, wherein the testimony of at least five consultants was presented, as well as environmental, traffic and appraisal reports. Attorney Heller testified at length in all three hearings and explained how the project complied with the harmony requirement. The commission also heard testimony and received two reports from Bob Silverstein, an appraiser from Miner Silverstein Appraisal Company. Silverstein testified that, based on an analysis of similar projects in the surrounding areas and houses sold, the Mystic Woods project will not have an adverse impact on the surrounding neighborhoods, in terms of property values. He stated that when a residential development is of equal or greater value to the surrounding properties, it will not have an adverse influence on the value of the existing homes. As the proposed project's homes will be at or above the average values of the houses in the area, Silverstein concluded that "[t]here's no reason in my opinion to think that Mystic Woods will [have an adverse influence on the surrounding properties.] In fact, I would have to say it would have less of an influence than all these other properties [developments that he reviewed] because of the way it is designed." The evidence in the record supports the commission's finding that the harmony requirement is met.
The transcripts from the three public hearings total more than 450 pages.
Silverstein looked at three similar developments in nearby towns and houses sold in close proximity to those developments, and found that there the houses were not on the market longer than the average market time, and sold for the average market amount. As those developments did not have an adverse impact on the surrounding property values, it was his opinion that Mystic Woods would not have an adverse impact.
The units in the proposed project have a projected selling value of (1) $275,000 for the entry level units, (2) the mid level homes will be in the "mid-300s," and (3) the luxury units are projected to sell for $425,000 to $450,000. The houses that Silverstein reviewed for his report sold for between $230,000 and $370,000. In his second report, he reviewed houses next to developments in Ledyard, Connecticut that sold for between $234,000 and $380,000.
During the deliberations meeting, several members stated their discomfort with the proposed project, and their concern with the harmony factor. The commission decided to condition the project on a certain number of units and a greater buffer area in order to bring the project into compliance with the harmony factor. It must then be found that the commission properly considered § 8.3-8(A) in making this decision.
IV
CONCLUSION
For the foregoing reasons, it is found that: (1) GOSA has standing only to appeal the environmental issue, and Sullivan has standing to appeal the commission's entire decision; (2) the town staff did not exceed the scope of its duties; (3) the commission's modifications were not arbitrary or inappropriate; and (4) the approval of the permit is supported by substantial evidence.
Accordingly, the appeal is dismissed.