Opinion
No. FST CV 05-4007459 S
May 8, 2007
Memorandum of Decision
Pursuant to General Statutes § 8-8, the plaintiff's appeal from a October 19, 2005 decision of the Norwalk Zoning Commission (the "Commission"). That decision approved the application of defendant McChord Engineering Associates ("McChord") for a coastal site plan and special permit for a proposed bulky waste transfer/recycling center at 1 Crescent Street in Norwalk. The plaintiffs claim to be aggrieved by the Commission approvals and assert that, in approving McChord's applications, the Commission acted illegally, arbitrarily and in abuse of its discretion.
The record establishes the following facts: Plaintiff, Sclafani Brothers of Crescent, Inc. ("Sclafani Brothers"), is the owner of commercial property located at 22-24 Butler Street in Norwalk abutting the 1 Crescent Street property. Gus Sclafani Corporation ("GSC") leases the commercial property from Sclafani Brothers for use as a food distribution facility.
On May 3, 2005, Defendant McChord filed an application with the Commission for a special permit and coastal site plan approval to allow it to use the 1 Crescent Street property for recycling and transfer of bulky waste generated from the demolition and construction of buildings. The property is located in the I-1 Industrial zone. The uses permitted in that zone are set forth in section 118-700B of the Norwalk Zoning Regulations. Section 118-700B(2)(f) provides that "solid waste transfer stations, recycling and composting centers and related facilities" are permissible uses provided that a special permit under section 118-1450 of the Regulations is obtained.
Section 118-1450 of the Norwalk Zoning Regulations provides: "A Special Permit may be granted after determination by the Commission that the proposed use or structure is in harmony with the general purposes and intent of these regulations and after consideration of the following conditions where applicable:. . ." While Section 118-1450 of the Regulations lists 13 separate conditions, only the last condition is at issue in this appeal. That condition is: "(m) No zoning violation exists on the property." The subject property is located in a "coastal area" as defined by General Statutes § 22a-94 and is therefore subject to the provisions of the Coastal Management Act, General Statutes § 22a-90 et seq.
In their appeal the plaintiffs claim to be both statutorily and classically aggrieved by the decisions of the Commission and to have standing to appeal by virtue of the environmental impact of the proposal under § 22a-19. The plaintiffs claim that the Commission acted illegally, arbitrarily and in abuse of its discretion by approving an application which was not in accordance with the zoning regulations, by failing to give proper notice, by failing to properly evaluate the environmental impact of the proposed use in accordance with General Statutes § 22a-19 et seq., by imposing illegal or improper conditions on its approval, and by improperly interpreting its regulations.
DISCUSSION
An appeal from a decision by a zoning commission is statutory in nature and the standard of review by the Superior Court is well established.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision. . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
AGGRIEVEMENT
The record reflects the fact that plaintiff, Sclafani Brothers, owns commercial property located at 22-24 Butler Street in Norwalk. That property abuts the 1 Crescent Street property, the subject of this appeal. The court finds that Sclafani Borthers is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
The court heard evidence with respect to the alleged aggrievement of plaintiff, GSC. In addition, the court considered the record with respect to such aggrievement. That evidence shows that GSC is the occupant of the property owned by Sclafani Brothers and is in the business of distributing food products from that location. GSC is concerned about possible rodent problems which might follow the commencement of recycling operations at McChord's proposed facility. The evidence also revealed that the area in question is in relatively close proximity to the City of Norwalk Transfer Station, located at 61 Crescent Street, which handles the disposal and recycling of waste materials generated in the City of Norwalk. However, the evidence is insufficient to establish that GSC was classically aggrieved. Accordingly, the court finds that plaintiff GSC has not sustained its burden of proof with respect to the issue of aggrievement.
DISCUSSION
The plaintiffs failed to brief or otherwise explain their claim regarding the inadequacy of the notice of the hearing on the subject application. The court will treat that claim as abandoned. State v. Waz, 240 Conn. 365, fn.10 (1997); Lawton v. Weiner, 91 Conn.App. 698 (2005).
ALLEGED ZONING VIOLATIONS
The plaintiffs claim that the defendant Commission ignored its own regulations by approving the site plan and special permit while a zoning violation existed on the subject property. They point out that Section 118-1450(C)(1)(m) of the Norwalk Zoning Regulations requires the Commission in reviewing applications to consider whether any zoning violation exists on the subject property. They claim that the record establishes that at the time of the application the property was in violation of zoning regulations in that trash containers on the property were stacked and placed illegally in setback areas. The plaintiffs' counsel brought the alleged violation to the attention of Norwalk's Director of Planning and Zoning and, at the hearing, asserted that the violations precluded the Commission from acting on McChord's application. The plaintiffs now claim that Section 118-1450(C)(1)(m) of the Norwalk regulations "precludes the grant of special permit if there is a zoning violation on the property."
The court does not agree. The regulation in question merely permits the Commission to grant special permits "after consideration of the [violation] where applicable." The wording of the regulation does not create a condition precedent to the Commission's ability to approve a special permit, it only requires that the Commission consider, inter alia, existing zoning violations when exercising its power to grant special permits.
ILLEGAL CONDITIONS
The plaintiffs also claim that the Commission illegally imposed conditions on its approval of the site plan and special permit which amounted to an improper delegation of its responsibilities to consider the impact of the project on the environment and neighboring properties and the steps required to mitigate such impact. The Commission's decision included fifteen separate conditions which it attached to its approval of McChord's application. The plaintiffs' brief alleges that the following conditions are improper:
3. That any additional needed soil and sedimentation controls be installed at the direction of staff; . . .
5. That a maintenance plan for the clean-out of the catch basins/trench drains/oil separator be submitted and a report from a licensed professional be issued to the staff on a monthly basis that the system has been properly maintained; . . .
10. That the site be swept as often as needed (to be determined by staff) to prevent windborne or waterborne erosion; . . .
13. That the required flood proofing certification be submitted for the yard office, as required; and
14. That as offered at the public hearing, additional screening trees be planted offsite at Matthews Mansion Park, to provide additional screening for the playground, said work to be installed in coordination with the Recreation Parks Department.
A zoning authority may impose reasonable conditions upon the granting of a special permit which are not specifically articulated in the regulations as long as two circumstances are present: (1) the regulations authorize the imposition of conditions, and (2) the conditions are designed to protect the neighborhood. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428 (1967). "It is well settled that a planning and zoning commission pursuant to appropriate regulations may impose reasonable conditions not specifically articulated in the regulations which are necessary to protect the health, safety, convenience and property values adjoining the specific site of the project under review." Griswold Hills Newington v. Planning Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 540954 (January 9, 1996, Mottolese, J.), citing Shulman v. Zoning Board of Appeals, supra.
Section 118-1540 of the Norwalk Zoning Regulations controls the process of consideration of, and action on, applications for special permits. Subsection B. (4) provides that: "The Commission shall approve, approve with conditions, or disapprove the application. . ." (Emphasis added.). It is clear that the Norwalk Zoning Commission, in acting on a special permit application, is empowered to attach reasonable conditions on its approval. Nevertheless the plaintiffs argue that the conditions attached to the Commission's approval constitute illegal delegations of authority and an abrogation of the Commission's responsibilities.
Where an illegal condition is imposed and that condition is integral to the approval of a special permit or special exception, the court is required to sustain an appeal from the action of the Commission. Yageman v. Planning Zoning Commission, 92 Conn.App. 355 (2005).
In Gay v. Zoning Board of Appeals, 59 Conn.App. 380, 385-86 (2000), the Appellate Court considered past decisions relating to the validity of conditions imposed by zoning officials. "It is a valid condition on the granting of an application to erect certain structures for a wastewater treatment system to require the applicant to submit a plan to eliminate future sludge production and to remove sludge. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96 (1992). In Upjohn Co., the condition was related to the application, and the promisor of the condition was the same entity that later sought to attack it. A condition requiring the demolition of one tower on the granting of a special exception to erect a replacement tower is valid because there is a substantial relationship between the request to build a new tower and the demolition of the existing tower. Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 522, cert. denied, 203 Conn. 808 (1987).
"In those cases deciding that a condition is invalid, the universal thread, as is true in cases upholding the validity of the condition, rests on the closeness of the relationship of the condition to the action sought from the zoning entity and whether the entity had the authority to require the condition. A condition is void if it requires a zoning entity to deny a future application even if the future application fully complies with zoning; Moscowitz v. Planning Zoning Commission, supra, 16 Conn.App. 311-12; or if the condition is impossible to satisfy; Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58 (1990); or if the zoning entity exercises a power not held by it but by another governmental entity; Bora v. Zoning Board of Appeals, supra, 161 Conn. 302; see also Parish of St. Andrew's Church v. Zoning Board of Appeals, supra, 155 Conn. 350; or if the condition bears no relationship to the action sought from the zoning authority and is not an essential or integral part of it. Beckish v. Planning Zoning Commission, 162 Conn. 11, 18-19 (1971)." In Gay, the Appellate Court found a condition imposed by a zoning board prohibiting development of a lot which was neither the subject of the board's action nor connected to it in any way to be void ab initio.
The court finds that all of the conditions imposed by the Commission are patently reasonable and reasonably related to the purposes of zoning. The court further finds that, rather than evidencing a disregard for the potential impact of the McChord's proposed activities, the Commission's imposition of conditions demonstrates an acute awareness of the situation and, taken as a whole, constitutes a reasonable response to it.
COASTAL AREA MANAGEMENT
Because the property is located within the coastal zone, it is subject to the provisions of the Coastal Management Act, General Statutes § 22a-90 to § 22a-113c. Section 22a-109(a) requires a coastal site plan to be filed with the municipal zoning commission for the purpose of determining compliance with local zoning regulations and the policies of planned coastal management. See Fort Trumbull Conservancy v. Planning Zoning Commission, 266 Conn. 338, 354 (2003) for a discussion of the legislative history of Connecticut's Coastal Management Act.
The plaintiffs claim that the Commission failed to make written findings and a statement of reasons as required by General Statutes § 22a-106(d) and (e). Section 22a-106(d) provides in relevant part: "A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action." Section 22a-106(e) provides:
In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in Section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
Section 118-1110 of the Norwalk Zoning Regulations in large measure incorporates the CAM requirements enumerated in General Statutes §§ 22a-105 to 22a-109 into the Norwalk Regulations. However, the Norwalk Regulations do not independently impose on the Commission the obligation to make the same written findings required by General Statutes § 22a-106(e).
The portion of the resolution of the Commission addressing compliance with CAM requirements includes the following:
[T]he Norwalk Zoning Commission, after reviewing the public record, does not believe that the application as submitted. . . will have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state for the following reasons:
1. Other than the statements to that effect, there was no conclusive, credible, expert testimony or evidence that such an adverse impact would be caused by the proposal; . . .
[Reasons 2. through 5. do not relate, directly or indirectly to the purposes of CAM]
6. The proposal complies with the 1991 Plan of Development and the Comprehensive Plan for the City — both of which anticipated development of this site at the scale proposed.
7. The project has been approved by both the Norwalk Health Department and the Department of Public works, and after due consideration of their approvals, we concur that there will be no unacceptable adverse impacts on health or the infrastructure.
The court agrees with the plaintiffs that the Commission's findings fall short of complete compliance with requirements of the Coastal Management Act. However, the statements in the Commission's resolution finding an absence of evidence substantiating various adverse impacts, carries with it the obvious implication that McChord had, to the satisfaction of the Commission, met the burdens imposed on it as an applicant for a special permit and coastal site plan approval.
However, even the complete absence of written findings and statement of reasons will not nullify or invalidate an agency's decision where the court finds, upon review of the entire record before the agency, that substantial evidence exists in the record to support the agency's decision. Evans v. Plan Zoning Commission, 73 Conn.App. 647 (2002); Gagnon v. Inland Wetlands and Watercourses Commission, 213 Conn. 604 (1990).
The record reflects that the site in question, while within Norwalk's coastal boundaries established pursuant to General Statutes § 22a-94, is not in close proximity to the waters of Long Island Sound or Norwalk Harbor. In fact, the property is separated from waterfront property by the tracks of the Danbury line of the Metro North Railroad. Coastal site approval is required simply because of the site's low elevation.
The record also contains ample evidence to support the findings inherent in the Commission's decision that McChord's proposed use would be consistent with the goals and policies of General Statutes § 22a-92 and § 118-1110 of the Zoning Regulations of the City of Norwalk. The record further supports the conclusion that the conditions imposed by the Commission include ones reasonably related to the mitigation of any potential adverse impacts which the project could potentially have, including those related to coastal resources and water-dependent activities.
Based on the foregoing, the court dismisses the plaintiffs' appeal.