Opinion
No. CV01 0810472 S
August 5, 2003
MEMORANDUM OF DECISION
At the turn of the last century, the city of Hartford was reportedly the wealthiest city in America. Among its treasures was a magnificent park system, and among those parks was the land in the west end of Hartford and in the town of West Hartford donated for public use by Charles Pond in honor of his wife Elizabeth. Especially known for its rose gardens, Elizabeth Park has been a popular pastoral destination for decades.
The feature fueling the present dispute is the somewhat unusual circumstance of municipal ownership of a park in another municipality: the majority of Elizabeth Park, which is entirely owned by the city of Hartford, lies within the town of West Hartford. The arrangement worked amicably, apparently, for many years, but in recent years the expansion of a restaurant and banquet facility in the West Hartford portion of the park has engendered controversy.
The restaurant, called the Pond House, existed for many years as a modest snack bar sort of operation. According to the testimony of most who remarked on the history at the hearings in this case, the Pond House served the convenience of those who visited the park, but was rarely an intended destination in itself. The present facility was evidently built in 1959, and substantially renovated in 1996 and 1997. The Pond House is currently used as a restaurant and a banquet or event center. The event facility has been called the "auditorium."
The plaintiff city owns the Pond House. It has entered into an agreement with the plaintiff Friends of Elizabeth Park such that the latter nonprofit group manages and maintains the Pond House. Friends of Elizabeth Park, in turn, has entered into an agreement with the plaintiff Food Group, Inc., whereby Food Group actually operates the restaurant and auditorium. Implicit in the contractual arrangements is the notion that proceeds from the operation of the Pond House help to finance the maintenance of the park.
In any event, when the Pond House reopened in the late 1990s, it embarked on a more ambitious scope of operation, and the town of West Hartford, through its zoning enforcement officer, issued a cease and desist order in March 2001. The park was located in an R-10 zone, which is designated for residential use. The plaintiffs appealed from the order to the West Hartford Zoning Board of Appeals. While the appeal was pending, the parties decided to try to resolve the problem more globally: the parties entered into a stipulation whereby the town would propose the establishment of an Elizabeth Park zone and the plaintiffs would apply for the designation of a Special Development District ("SDD") for the small portion of land comprising the restaurant, the land immediately around the restaurant and the roadway access from the restaurant to Asylum Avenue in West Hartford. On passage, the zoning enforcement appeal would be moot. The applications were duly made, and the town held hearings on July 9 and July 31, 2001. The zone change for the land from R-10 to the "Elizabeth Park" zone was approved on August 14, 2001, and the "SDD" application was approved as well.
The SDD approval included a number of conditions, which are the subject of this appeal. Although the plaintiffs applied for the designation, they claim that a number of the conditions imposed are illegal, arbitrary and constitute an abuse of discretion. In their complaint, dated August 31, 2001, they allege that the conditions make it impossible to operate the Pond House within the SDD, thus rendering the district a nullity, that the conditions in effect reverse prior approvals granted by the town, that the conditions constitute an attempt to regulate the entire use of the premises, that the "boilerplate" language is inappropriate, that the conditions exceed the lawful powers of the town, that the conditions confiscate property, that they are not reasonably related to the police power or to the goals of the council, that they violate concepts of equal protection because of irrational distinctions made, that they are not in accordance with the town's comprehensive plan, that they violate other existing zoning violations and, finally, that they are not supported by the record. Many of these allegations have not been briefed or otherwise pursued and are therefore deemed abandoned.
While the appeal was pending the then existing parties reportedly reached an agreement to settle the dispute. A number of property owners in the vicinity of the park requested to be named as party defendants in order to participate in, and effectively to block, the settlement. Over strenuous objection I granted intervenor status by memorandum of decision dated August 12, 2002 [ 32 Conn.L.Rptr. 695]. As a result, the settlement did not occur, and the intervenors participated in the argument of this case and submitted a brief. Argument of the merits of the appeal occurred on April 23, 2003.
Although I am well within the 120-day time limit for rendering decisions, I am later than I had hoped and I apologize to the parties. Not every good intention is realized.
I first consider aggrievement. As the owner of the premises which are the subject of the applications, the city is aggrieved. Bossert Corporation v. City of Norwalk, 157 Conn. 279, 285 (1968). I also find that the Friends of Elizabeth Park and the Food Group have specific personal legal interests in the subject matter, and the conditions in all likelihood will injuriously affect them. See, e.g., Gladysz v. Planning Zoning Commission, 256 Conn. 249, 255-57 (2001). I find standing for the two contracting groups as well, although the second determination doesn't make a significant difference in light of the clear aggrievement presented by the city.
A second, related issue is more troubling. The plaintiffs submitted the applications for the zone change and the SDD, and then have appealed from its granting. The defendant town council or other agencies of the town have yet to decide the merits of any specific final plan, which has not yet been submitted. See DR94 (the SDD approval, with conditions), §§ I, K, which call for final plan approval. No specific final plan has been either acted upon or denied, and there may be a valid question as to whether there has been an appealable decision for the purpose of subject mater jurisdiction.
Though mentioned in passing, no party has pressed for dismissal on this ground, and in fact all parties have strenuously advocated their positions on the merits. In the circumstances, and in the absence of a clear position on subject matter jurisdiction, I will, with one exception, decide the merits of the dispute.
I will in a moment address the specific merits of the controversy as framed by the parties. It may be well to digress briefly to recognize a significant difference in approach between the two sides. The plaintiffs seek to characterize the issues narrowly, and insist that only a reason specifically stated in the SDD approval may be used to evaluate the actions of the council; the plaintiffs' argument reads much like an appeal from the denial of an application for a special permit, which must be allowed unless the record substantially supports the reason given for denial. The defendants, on the other hand, consider the issues more globally: they urge that this is, after all, legislative action by the town council rather than an administrative decision, and far wider discretion is to be accorded to the town as a result. And in the "big picture," the town argues that almost any change in the zoning structure favors the plaintiffs, because they began with a park in a residential zone rather than a restaurant in a commercial zone, and what is reasonable in one context might be unreasonable in another.
Turning to the merits, I first find, as agreed upon by all, that the town's actions in establishing the Elizabeth Park Zone and the component SDD were legislative in nature. As a result, a court must extend a wide latitude to the decisions of the council and be careful not to substitute its judgment for that of the duly authorized legislative body:
We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations. "[T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments." D J Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 450, 585 A.2d 1227 (1991). "In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission 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 agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979)." Primerica v. Planning Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). "Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. Malafronte v. Planning Zoning Board, [ 155 Conn. 205, 209, 230 A.2d 606 (1967)]." (Internal quotation marks omitted.) Arnold Bernhard Co. v. Planning Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984). This legislative discretion is "wide and liberal," and must not be disturbed by the courts "unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." Burnham v. Planning Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). "Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 [1962]; Clark v. Town Council, 145 Conn. 476, 483, 144 A.2d 327 [1958]. The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." Malafronte v. Planning Zoning Board, supra, 209-10. Within these broad parameters, "[t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes 8-2, Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 [1962], and (2) it must be reasonably related to the normal police power purposes enumerated in 8-2 . . ." First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973).
Protect Hamden/North Haven v. Planning and Zoning, 220 Conn. 527, 542-44 (1991).
The issue as to each contested condition, then, is conceptually straight forward, though perhaps factually complex: is the condition in accord with the comprehensive plan and reasonably related to the police power as specified in § 8-2 of the General Statutes? The analysis of each condition must also refer to the reason for the condition, either as formally, officially and collectively articulated by the council or by logical examination of the record. See West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 513-14 (1994). The consideration of whether a condition is in harmony with the comprehensive plan includes, if relevant, review of the whole of the zoning regulations and any zoning map. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265-67 (1983); Stiles v. Town Council, 159 Conn. 212, 227 (1970). In reviewing legislative action, the court need not require specific findings regarding specific statutory factors, and reasons can be found in comparing previously existing provisions to the new provisions in issue. Protect Hamden, supra, 549, 553-54.
The zoning authority of the town of West Hartford has been vested in the town council by special act of the legislature, and the powers are generally set forth in the Charter, Chapter XII, § 3. With one notable exception, the powers extended to the town are virtually identical to the generic enabling provisions of § 8-2.
It is abundantly apparent that the reasons for the conditions imposed in the SDD, in broad generality, were attempts to allow the Pond House to exist in the somewhat anomalous setting of a public park in a residential zone. As noted by the defendants, alcohol, for example, is rarely allowed in any public park, and hours of operation are typically on the order of sunup to sundown. There were, then, many interests to try to accommodate. The plaintiffs repeatedly insist that the only relevant reason, as collectively articulated by the council, is found in one sentence of the Conditions of Approval of SDD: "Under any circumstances, however, food service and meeting facilities should be limited in a manner which prevents those uses from impairing the main recreational mission of the park as a whole." DR 94, p. 2. Though this undoubtedly is one articulation, others abound in the record. In the same document, for example, the council, recognizing the fame and concomitant expense of Elizabeth Park and the advisability of treating it differently from a park owned by West Hartford, mentioned the benefits of operating the Pond House, and added that the conditions will make the District harmonious with the "overall objective of the Comprehensive Plan, as established by the Zoning Ordinances of the Town of West Hartford," that the district with conditions was superior to a plan possible under the "regular standards" and in harmony with the actual or permitted development of adjacent properties. These, of course, are the standard factors to be considered by the town of West Hartford in the establishment of Special Development Districts; see § 177-44B(2) of the zoning code (DR 172); and because they are specifically referred to in DR 94, they are clearly relevant to the consideration of whether adequate reasons were stated.
The "regular standards," though subject possibly to grandfathering qualifications, would have been far more restrictive.
Further, the town council was not operating in a vacuum. The ordinance establishing the Elizabeth Park ("EP") zone, into which the SDD was carved, was established virtually contemporaneously, and is especially relevant to the stated reason of trying to achieve harmony with the comprehensive plan, which, as has been stated, may be found in the regulatory scheme. The EP zone is the same as an R-10 zone, except:
This district is established in recognition of the unique recreational opportunities which may be afforded to the public in Elizabeth Park. It is appropriate to permit food service and public or private meetings, including the provision of outdoor dining opportunities and walk-up window service within Elizabeth Park. If these uses are established within the zone, they shall be held to higher standards and subjected to stricter review than would be applied to similar uses in commercial zones. Food service and public/private meeting facilities shall, therefore, be permitted in the EP zone only upon approval of a Special Development District Plan pursuant to § 177-44. The standards applicable within the EP zone shall be those set forth in § 177-6D with respect to property located within the R-10 zoning district.
(Emphasis added.) DR 121; West Hartford Zoning Ordinance § 177-3D(6).
Another reason for the restrictive conditions may be found, and adequately articulated, in the third standard expressly necessary to the establishment of this or any SDD in West Hartford: that the SDD is to be in harmony with the "actual or permitted development of adjacent properties." Section 177-44B(2).
To distill the above discussion, then, the test as to any condition in dispute is whether, by virtue of an articulated, readily discernible reason, the condition is rationally related to the comprehensive plan and is rationally related to the authorized police power. The reasons, as stated above, are manifest and manifold: quite plainly, the town sought to allow a restaurant and banquet facility, with the concomitant revenue, but sought to impose significant limitations so that the facility as a whole interfered minimally with the public's use of the park, so that the facility be harmonious with the adjacent, residential property and so that the SDD would conflict as minimally as possible with the requirements of the comprehensive plan, which places the park in the midst of a residential zone. My role as a reviewing court is not to second-guess the council's decision in an obtrusive manner, but rather is to ensure, after all, that the action was not illegal, arbitrary or an abuse of discretion.
As stated in Protect Hamden, supra, the reason does not, in order to be valid, necessarily have to be stated specifically in connection with each condition.
I turn, then, to a consideration of the conditions and their validity. I have reviewed the many exhibits and transcripts of proceedings before the council. In light of the deference to be accorded the legislative process, however, I find the analysis as to each condition to be quite simple and I will not review at any length the supporting evidence, for which the reader may be grateful.
The first concern briefed by the plaintiffs is the condition limiting the hours of operation. The "admission of patrons" to the Pond House is limited to hours of operation from 11:00 a.m. to 9:00 p.m., and "patron use" of the auditorium is limited to the hours of 8:00 a.m. to 10:00 p.m. The plaintiffs have advanced several arguments as to why the limitations are invalid.
The plaintiffs claim that the City of Hartford has authorized general operating hours for parks from 6:00 a.m. to 10:00 p.m., and has specifically authorized the Pond House to be open "after 10:00 p.m." It is not at all clear to me how Hartford's authorization, which may be necessary for operation of the facility at all, preempts the zoning ordinances of the municipality in which the land is located. City of New London v. Zoning Board of Appeals, 29 Conn. App. 402, 408 (1992), provides at least oblique authority for the proposition that a municipality may regulate through zoning the property within its boundaries which is owned by another municipality. Although the city certainly has been granted authority by the legislature to regulate its parks, so has the town received authority to zone. A situation in which, absent express authorization by the General Assembly, one municipality could do whatever it wanted in another municipality belies common sense and cannot reflect the intention of the General Assembly.
Regulating hours of operation is, generally, within the purview of the police power, at least in the context of a public park. See Floch v. Zoning Commission, 1995 Ct. Sup. 6287 (1995) (Levin, J.). Such regulation is consistent with the town's enabling act. See Chapter XII, § 3 ("to promote health and the general welfare" and "with reasonable consideration as to the character of the district and its peculiar suitability for particular use, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the district"). The regulation is supported at a minimum by the reason of allowing operation of the park with minimal interference with adjacent properties, with the express recognition that the zone is simply different from a commercial zone.
Limitation of hours in which liquor may be served may be limited by a town, though not necessarily by a zoning board of appeals. See Bora v. Zoning Board of Appeals, 161 Conn. 297, 302 and § 30-91 of the General Statutes. Here, the action was taken by the town, and the action is supported by adequate reasons: the activity is in a residential neighborhood, and safety and peace and quiet are legitimate issues. Finally, the uniformity doctrine does not bar the limitation on hours: first, there is some question as to whether the hours actually would not be uniform between the restaurant and the auditorium, in that the condition might be read such that patrons would not be admitted after 9:00 p.m. but could still be present until, perhaps, 10:00 p.m. If there were a difference, it should be stressed that this facility is the only one within the district, and thus is unlikely not to be uniform with itself; and it has itself proposed different uses for different portions. And the West Hartford ordinance, unlike § 8-2 of the General Statutes, does not appear to require uniformity in use.
I find, then, that the limitation on hours is rationally related to the comprehensive plan and to the delegated police powers, and is supported by evidence and reasons in the record.
The SDD application, as passed, includes the proscription of the service of all alcoholic beverages at the auditorium; patrons of the restaurant were permitted to bring their own beverages to the restaurant and the town indicated its acquiescence in a wine and beer permit for the restaurant, should be plaintiffs seek such a permit. This provision, § E.10 of the SDD approval, specifically recites that:
the use of alcoholic beverages poses a risk of harm to users of Elizabeth Park. This is particularly true where, as in the case of Elizabeth Park, parking areas are scattered and vehicles travel throughout the park. Further, large gatherings at which alcoholic beverages are served to invited guests require the delivery of greater quantities of alcohol and carry a greater risk of alcohol abuse than do small gatherings of patrons at Restaurants where alcohol is consumed at meals. The extent of the risk of harm to park goers must be weighed carefully against the viability and desirability of the Pond House as a public facility.
Many residents testified about concerns regarding alcohol and automobiles. It should be noted that alcohol is generally prohibited in parks; the city of Hartford itself generally prohibits alcohol. To say that there is no rational relationship between the service of alcohol and health and safety is to border on the ludicrous. The distinction between the restaurant and the auditorium, while perhaps a fine line, is one which the council was entitled to draw. I find that, in addition, the reasoning applicable to the hours of operation issue pertains to the alcohol condition, and that the result is the same.
Another condition required the addition of thirty-seven spaces within 300 feet of the Pond House, if the use of the East Patio is permitted. Again, a specific recitation of reasons prefaced the condition: in sum, the council found that parking was a problem in the park, in that there is competition for spaces with other members of the public and that parking now is somewhat scattered. As a general proposition, it was well within the discretion of the council to consider parking problems, particularly within the context of a park in which the profusion of automobiles themselves may be unsightly.
The plaintiffs argue that the condition is inconsistent with other sections of the West Hartford zoning provisions regulating the number of parking spaces. But this is an ordinance with at least equal validity and is specific in its application, and is not invalid simply because requirements are different. As noted in the preamble to the legislation creating the EP zone, the fact that the EP zone is a park means that it will be treated more restrictively than a standard commercial zone, and different considerations have to be balanced. The need for more spaces closer to the Pond House is not irrational, and the reasons in the record support the need.
The parking issue is somewhat premature, however. The council recognized that there may be practical difficulties with the addition of the spaces. It specifically allowed reconsideration of the issue if the Plan and Zoning Commission should deny an application, and the plaintiffs have suggested a potential problem with inland wetlands. In light of the distinct possibility of the council's revisiting the issue, and in light of my reservation expressed in footnote two of this decision, I do not believe that the parking issue is reviewable at the time. The conditions are, according to the town council, severable; see § 2.L of the SDD approval; and I am not convinced that approval is a probability. Cf. Stiles v. Town Council, supra, 221-22. I find, then, that consideration of the parking issue is not ripe for review, because further action is required at the local level to provide an adequate basis for review.
In West Hartford, the plan zone commission is also the inland wetlands agency. See § 25-3 of the Code of Ordinances.
Finally, the plaintiffs argue that the provisions regarding public access, catering, use of restrooms and the boilerplate provisions are invalid because they seek to impose control over the overall operation of the facility and are not based on rational zoning considerations. Much evidence was submitted regarding the use of the park by the public and a perceived usurpation of the park by private parties; much of the preambles to the various approvals specifically mention the need to balance the public nature of the park with the operation of the Pond House. The effort to balance usage is fully supported by the record and the articulated reasoning, and is consistent with the comprehensive plan and the exercise of reasonable police power. In short, allowing use by public groups clearly is consistent with the comprehensive plan and is supported by reasons in the record; further, it clearly is consistent with promoting the general welfare: why else have public parks? A ban on outside catering is consistent with the expressed goal of limiting the commercial use of the premises — which after all are in the midst of a residential zone — to that necessary to operate the Pond House. In any event, I find that the conditions are supported by reasons and bear a reasonable relation to legitimate goals. I do not consider the "boilerplate" conditions in detail because they were not specifically briefed by the plaintiffs; in sum, they are more detailed than ordinary zoning provisions but, of course, it is a Special Development District which is under consideration and the ability to require greater control is well documented in such circumstances. See. e.g., Tondro, Connecticut Land Use Regulation, 2d Ed. (1992) 70-72, 636 et seq.
In conclusion, the conditions were somewhat restrictive, but the council was dealing with a park surrounded by residences. The evidence supported the reasons given, which were valid in light of the comprehensive plan and, fundamentally, the exercise of the police power. The appeal is dismissed for lack of a final decision as to the parking requirements, as I find that issue is not ripe. Otherwise, the appeal is dismissed on the merits.
Beach, J.