Opinion
No. CV 08 4017909 S
October 22, 2010
MEMORANDUM OF DECISION
This action is an appeal, pursuant to General Statutes § 8-8(b), taken by the plaintiff, Hard Rock Development, LLC, from a decision of the defendant, the planning and zoning commission of the town of Watertown (commission) conditionally approving the plaintiff's modified site plan. In the appeal the plaintiff advances, in essence, three grounds for appeal: (1) that, by imposing certain conditions on its approval, the commission's decision imposed a modification of its modified site plan where such site plan already complied with the Watertown zoning regulations, effective May 1, 1955 and revised to October 12, 2007; (Return of Record [ROR], Exhibit V); (regulations), (2) that the commission, by attaching said conditions, impermissibly reversed its previous approval of the plaintiff's original site plan, and (3) that the commission imposed such conditions on its approval of the plaintiff's modified site plan as a result of its impermissible reliance on its lay opinion, which expert testimony presented by the plaintiff contradicted. For the following reasons, the court sustains the appeal on the basis of the third ground, and, consequently, will only address that ground
I FACTS
A review of the record reveals the following relevant facts: The plaintiff was the owner of an approximately 22-acre parcel of undeveloped land located at 1061 Echo Lake Road in Watertown, Connecticut (property). (ROR, Exhibit I, 1, a.) The plaintiff sought to develop a commercial and industrial complex on the property that was to be known as "Watertown Business Center." (ROR, Exhibits, I, 1; I, 1, a.) To that end, the plaintiff filed the original site plan in 2007 proposing the construction of seven buildings with a total building coverage of 122,000 square feet. (Plaintiff's Exhibit 1.) The seven buildings were to be serviced by connecting them to a preexisting twenty-four-foot-wide driveway that had been servicing a neighboring lot. (Plaintiff's Exhibits 1; 3, ¶ 4.) The commission approved the original site plan at its regular meeting held May 2, 2007, without imposing any conditions with respect to the dimensions of the driveway. (ROR, Exhibit I, 1, c.)
The commission did impose conditions on its approval, but none of the conditions is at issue in this appeal. (ROR, Exhibit I, 1, c.)
The plaintiff thereafter filed an application dated June 6, 2008; (ROR, Exhibit I, 1); which is the subject of this appeal, for approval of a modified site plan, wherein the plaintiff would construct fifteen buildings covering approximately 82,000 square feet. (ROR, Exhibit I, 1, a.) The existing twenty-four-foot driveway would continue to provide access to the property, as it did in the original site plan. (ROR, Exhibits II, 10; IV, Sheets S-1, S-2.)
The commission considered the modified site plan at four meetings occurring July 2, 2008, August 6, 2008, August 20, 2008 and September 3, 2008. (Plaintiff's Exhibit 3; ROR, Exhibits III, 1-III, 4.) Thereafter, the commission, in executive session, voted on September 3, 2008 to approve the modified site plan subject to certain conditions which included, among others, that: (1) the existing driveway be widened from twenty-four feet to thirty feet and (2) the plaintiff add a second exit lane at the driveway's intersection with Echo Lake Road. (ROR, Exhibit II, 17.) Neither of these conditions was included in the approval of the original application. (ROR, Exhibit I,1, c.)
References to Exhibit III, 4 in this memorandum are references to the transcript filed on October 7, 2009 (#107), in order to correct a deficiency in the original transcript that was filed as part of the return of record.
Notice of the decision was published in the Town Times on September 18, 2008. (ROR, Exhibit II, 18.) The present appeal was subsequently brought on September 29, 2008. The plaintiff and commission filed their briefs on October 14, 2009, and January 29, 2010, respectively. Following a court trial spanning three days and ending July 9, 2010, the court heard oral argument on the appeal on August 20, 2010.
II JURISDICTION
First, "[i]t is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 410.
"An owner of the subject property is aggrieved and, therefore, entitled to bring an appeal." Rogers v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 4011571 (August 6, 2010, Hiller, J.), citing Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). The court finds that the plaintiff is the owner of the subject property. (Plaintiff's Exhibit 5.) Therefore, the court also finds that the plaintiff is aggrieved and has standing to bring this appeal.
Second, "[i]t is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001). Section 8-8(b) provides that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." The notice of the commission's decision was published on September 18, 2008, and the plaintiff served this appeal eleven days later on September 29, 2008 Thus, the court finds that the appeal was timely brought.
Furthermore, under § 8-8(f)(2), "[for any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of Section 52-57." General Statutes § 52-57 (b) provides: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a. . . . commission . . . of a town . . . notwithstanding any provision of law, upon the clerk of the town . . . provided two copies of such process shall be served upon the clerk . . ." According to the marshal's return, the marshal served three copies of process upon Virginia Russ, the acting town clerk for Watertown. Thus, the court finds that service was proper. Accordingly, for the above reasons, the court concludes that it has subject matter jurisdiction over the appeal.
III DISCUSSION
General Statutes § 8-8 provides, in relevant part, that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." "It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . ." (Internal quotation marks omitted.) Vine v. Planning Zoning Commission, 122 Conn.App. 112, 115, 998 A.2d 226 (2010).
The plaintiff specifically challenges the two conditions that the commission imposed on its approval of the modified site plan that were not included in its approval of the original site plan: (1) that the existing driveway be widened from twenty-four feet to thirty feet, and (2) that the plaintiff add a second exit lane at the driveway's intersection with Echo Lake Road. (ROR, Exhibit II, 17.) As its third ground of appeal, the plaintiff contends that the commission impermissibly ignored the expert testimony as to the adequacy of the driveway that the plaintiff presented and impermissibly substituted its own lay opinion in imposing the challenged conditions. The plaintiff notes that there was no testimony, lay or otherwise, that the current twenty-four-foot driveway would have been inadequate. It also points out that, whenever members of the commission raised concerns about the adequacy of the driveway, its expert assured them that the driveway was of adequate width. Furthermore, the town engineer undertook no analysis of the driveway, and had no opinion about its adequacy, and the commission declined to conduct a traffic study. Finally, the evidence on which the commission did rely was presented at the end of the process and the plaintiff was not given an opportunity to rebut it.
The commission asserts that the question of the width of the driveway was properly within the lay knowledge of the commission and it did not need expert testimony to determine the appropriate width. It also argued that it was not required to conduct a traffic study and the lack of an opinion from the town engineer did not render the conditions improper.
"[I]n appeals from administrative zoning decisions . . . the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by substantial evidence in that record . . . In an appeal from the decision of a zoning [commission], [the court] therefore review[s] the record to determine whether there is factual support for the [commission's] decision . . ." (Citations omitted; internal quotations omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 223-24, 779 A.2d 750 (2001). "Should substantial evidence exist in the record to support any basis or stated reason for the zoning commission's decision, the court must sustain that decision." (Internal quotation marks omitted.) Id., 224. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 248, 962 A.2d 177 (2009). Importantly, "mere speculation . . . or general concerns do not qualify as substantial evidence." Cornacchia v. Environmental Protection Commission, 109 Conn.App. 346, 350, 951 A.2d 704 (2008).
The court will further recite the facts relevant to its determination of this issue. The first concerns about the width of the driveway came at the commission's August 6, 2008 meeting. One commissioner inquired whether the driveway was wide enough to accommodate tractor trailers, considering that the proposed access way that would connect the existing driveway to the buildings themselves was to be thirty feet wide, and considering that a retail store developer that had filed an application a few weeks before had planned for forty-five-foot-wide driveway. (ROR, Exhibit III, 2, p. 32.) The plaintiff's engineer, Charles Spath, explained that he considered whether the existing driveway should be widened and determined that it need not be. (ROR, Exhibit III, 2, p. 32.)
At the commission's August 20, 2008 meeting, commissioners discussed concerns about traffic exiting the property with a single exit lane when the property is fully developed with up to fifteen commercial and industrial buildings. (ROR, Exhibit III, 4, p. 8-9.) Spath responded by stating that he did not feel that there was a problem because traffic to and from the property would occur in a staggered manner due to differing work shifts. (ROR, Exhibit III, 4, p. 9.) One commissioner member expressed that his concern stemmed from a lack of knowledge as to what types of businesses would be situated on the property. (ROR, Exhibit III, 4, p. 9.)
In the interim between the August 20, 2008 and the September 3, 2008 meetings, Edward H. Scoville, Jr., a professional engineer with Stuart Somers Co, LLC, wrote a one-page letter to the commission regarding the propriety of a twenty-four-foot-wide driveway. (ROR, Exhibit II, 14.) Quoting AASHTO guidelines, Scovilie stated that in industrial areas, [traffic lanes] should be 3.6m [12 ft.] wide." (ROR, Exhibit II, 14.) He went on to state: "In review of AASHTO design guidelines, the existing conditions meet the design requirements. In my professional opinion the existing driveway will be capable of safely handling tractor trailer trucks and automobiles . . . I am unaware of any issues at this time with tractor trailers entering or exiting this driveway. In my professional opinion this driveway will continue to handle truck traffic safely as it does today." (ROR, Exhibit II, 14.)
The term "12 ft." in brackets that appears in the quotation is in the original document itself and was not added by the court.
At its September 3, 2008 meeting, the commission discussed further the issue of the width of the driveway. (ROR, Exhibit III, 3, pp. 10-11.) Commissioner Martin said that he visited the site and looked at the driveways for some of the other companies there. (ROR, Exhibit III, 3, p. 10.) He stated that "Eastern Awning has a 40 foot drive, Watertown Plastics had a two 27 foot drives [sic] separated by an island, Kauster Cunin had a minimum of 30 foot entry drive. Just so you know that is what is up there now, out of those three I picked when I was driving down." (ROR, Exhibit III, 3, p. 11.) Commissioner Mancini mentioned that another commissioner had wanted another comparable developer's driveway to be thirty feet and that he was concerned about the "possibility of working or 17 different factories up there with tractor trailers going up and down all day long." (ROR, Exhibit III, 3, p. 11.) Commissioner Rondeau expressed concern that there was enough room for trucks to pull over while waiting to unload. (ROR, Exhibit III, 3, p. 11.) Thereafter, Nick Perugini, representing the plaintiff, made no final comments to the commission despite being prompted to do so, and did not otherwise seek to address the commissioners' concerns. (ROR, Exhibit III, 3, p. 11.)
It is true that commissioners may rely on their own lay opinions on traffic safety issues, which are considered "matters readily within their competence." Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). They may not, however, pull their opinions out of thin air, but rather must rely on facts that are revealed as part of the record. See Loring v. Planning Zoning Commission, 287 Conn. 746, 759-61, 950 A.2d 494 (2008) (rejecting claim of commission that it relied on its personal knowledge in making conclusion that "preview booths" were not accessory use for adult video stores because record did not reveal facts known to commissioners that were sufficient to sustain its conclusion).
Furthermore while "an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988). "If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings." Id., 341 n. 2.
In a similar case, 53 Prospect Street, LLC v. Zoning Commission, Superior Court, judicial district of Windham, Docket No. CV 07 4006674 (June 30, 2009, Riley, J.), the zoning commission of the town of Putnam denied an application to build a sixteen-unit multifamily residential complex due to concerns about traffic safety on the local roadway network, a denial from which the applicant appealed to the Superior Court. The court found that there was substantial evidence supporting the commission's action. Id. A traffic report described the nature of the roadways and intersections in detail, including: that some of the intersections lacked stop signs, that the sight distances were poor at some of the intersections, and that one of the streets was so narrow as to be unsuitable for two-way traffic. Id.
There was additional evidence as to the nature of the roadways, mostly testimony from local residents, supporting the commission's action. See CT Page 20486 id. One resident described frequently seeing accidents and near accidents on certain portions of the roadway; another resident described one of the streets as "barely bigger than [his] driveway." (Internal quotation marks omitted.) Id. Yet another resident implied that his road was not reliably plowed in the wintertime, while another testified that driving up the hill on which the complex was to be built was often so treacherous in the winter that residents would park at the bottom and walk up the hill on snowy days. See id.
Unlike in 53 Prospect, in the present case there is no evidence, lay or expert, suggesting that the driveway, absent the challenged conditions, would have been in any way unable to handle the increased traffic, contrary to the position of the plaintiff's engineer. In fact, the commission cites nothing more than the commissioners' general and speculative concerns themselves in support of its conclusion. (Commission's Brief p. 10.) The only evidence before the court that the commission relied on was (1) the greater widths of various other driveways in other developments in the area, (2) that the proposed internal access way leading from the driveway to the plaintiff's buildings was to be wider than the driveway, and (3) that the modified site plan was to have fifteen buildings instead of seven. That these other driveways and the proposed internal access way happened to be wider than the driveway that the plaintiff intended to use does not suggest that such driveway was too narrow to be safe or that traffic could not safely exit onto Echo Lake Road without another turn lane. Furthermore, the fact that the modified site plan provided for fifteen smaller buildings rather than seven larger ones does not intuitively suggest that the current driveway would be inadequate to handle the traffic.
It should be noted that the commission filed an incomplete copy of the transcript of the September 3, 2008 meeting as Exhibit III, 3 of the return of record. Specifically, it filed only pages ten and eleven of a presumably complete transcript. While the portion of the meeting concerning the plaintiff's site plan began on page ten of the transcript, it did not end on page eleven. The commission submitted no evidence that facts upon which it relied were revealed during the portion of the hearing omitted from the return of record. Since "[t]he trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the [commission to support [its findings"; (emphasis added; internal quotation marks omitted) Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 247, 826 A.2d 1232 (2003); the court must assume that the commission relied on only those facts that were presented in the evidence that is actually before the court.
Indeed, the commissioners were entitled to rely on their lay knowledge and their experience, and the commission had the authority to impose conditions and restrictions on the modified site plan to promote safety. Nevertheless, they should have articulated the factual basis for their concerns and how the imposition of the conditions would have remedied the concerns. They failed to do so.
IV CONCLUSION ORDER
On the basis of the above analysis, the court finds that the commission lacked substantial evidence to support the imposition of the two challenged conditions. The next and final issue is what relief the court should grant. The plaintiff discusses this issue in its brief. According to the plaintiff, "the question is whether the [commission] would have approved the application to modify the 2007 site plan if the [commission] had been aware that the conditions that are the subject of this appeal would not be enforced." (Plaintiff's Brief p. 33.) The plaintiff then argues that the two offending conditions were not integral to the commission's decision and the court should merely modify the approval.
Per General Statutes § 8-8(l), "[t]he court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action." "Although the imposition of an unlawful condition does not necessarily render a zoning authority's entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority's decision it cannot be upheld." DeBeradinis v. Zoning Commission, 228 Conn. 187, 202-03, 635 A.2d 1220 (1994). A condition is an integral component of a commission's approval if the commission would not have granted the approval without such condition. See Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996).
While the plaintiff argues that the commission would still have approved the site plan absent the conditions, the commission is silent on the issue in its brief. Because the court does not have the full transcript of the September 3, 2008 meeting, during which the commission conducted its deliberations, and lacks other reliable evidence of what transpired there, the court finds it lacks sufficient evidence to determine whether the condition was integral to the commission's decision.
See footnote 4. The entirety of the commission's deliberations is found in the omitted portion. In its arguments in favor of modifying the approval, the plaintiff cites portions of the transcript that are not found in the record. The court will not guess what importance the conditions had to the commission in the absence of this crucial evidence.
Therefore, the court orders that the approval of the commission be vacated in its entirety and that the matter be remanded to the commission for the reconsideration of the evidence before the commission and for a redetermination consistent with this opinion.
Because the court has determined that there was no substantial evidence supporting the commission's concerns about the safety of the driveway, the issue raised by the plaintiff in its brief that the commission improperly prevented the plaintiff from presenting certain evidence to allay its concerns about the safety of the driveway is moot.