Opinion
No. 566413
April 28, 2004
MEMORANDUM OF DECISION
This is an appeal by plaintiffs, Kathleen F. Jacques, Kern Bruno, Pamela L. Award and Philip Antupit from the action of the defendant, Planning and Zoning Commission of the Town of Waterford, in granting the application of Healthcare Consulting Corporation (hereinafter HCC) for a change of zone to land in the Town of Waterford and in approving certain amendments to the zoning regulations.
For reasons hereinafter stated, the action of the Commission is affirmed.
All parties necessary to the action have been joined. All public notices required to have been given have been timely published and no questions concerning jurisdictional defects have been raised or noted.
This appeal is brought under the provisions of C.G.S. §§ 8-8 and 8-9. Section 8-8 limits such appeals to persons aggrieved by the decision appealed from. Pleading and proof of aggrievement are essential to establish subject matter jurisdiction over an appeal under § 8-8. Hughes v. Town Planning and Zoning Commission, 156 Conn. 505, 507 (1968). The question of aggrievement is essentially one of standing. McNally v. Zoning Commission, 225 Conn. 1, 5-6 (1993).
Two distinct categories of aggrievement exist, classical and statutory. Lewis v. Planning and Zoning Commission, 62 Conn. App. 284, 288 (2001). Statutory aggrievement exists by legislative fiat. In cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. Cole v. Planning and Zoning Commission, 30 Conn. App. 511, 514-15 (1993). C.G.S. § CT Page 6964 8-8(a)(1) provides that "aggrieved person" includes any person owning land that abuts any portion of the land involved in the decision of the board. In this case, the parties have stipulated and agreed that all plaintiffs own land which abuts land which was the subject of the zone change in question. It is found, therefore, that the plaintiffs are aggrieved and have standing to prosecute this appeal.
The record indicates that by application dated December 5, 2002, HCC applied to the defendant Commission, for a change of zone from RU-120 to Seaside Preservation Zoning District for a 36.3-acre parcel of land in the Town of Waterford owned by the State of Connecticut. The application also requested an amendment to the Zoning Regulations to create a Seaside Preservation Zoning District and to provide regulations for such district.
The property being located within the regulated coastal boundary of the Town of Waterford the applicants submitted a coastal site plan review report. By letter dated January 13, 2003, the Department of Environmental Protection informed the Commission that the proposed district would be consistent with the goals and purposes of the Connecticut Coastal Management Act with minor modifications.
The record indicates that the property involved here is a 36.3-acre tract of land with existing buildings. It has been described as a high plateau with 1800 feet of frontage of Long Island Sound and two small wetland areas. The property is located in the Rural Residential (RU-120) zone. Much of the development in the area preceded zoning and there are a number of smaller non-conforming lots adjacent to the property in the RU-120 and the R-40 zones. The entire property is now owned by the State of Connecticut. In 1934, the property was developed as a sanatorium for children with tuberculosis. At that time, staff would be between 80-100 with approximately 50 patients. With the decline of tuberculosis among children, the facility was closed in 1958 and opened as a geriatric hospital in 1959. At that time staff would be between 100-150 with 100 patients. The state closed the geriatric hospital in 1961 and converted it to a facility for retarded and physically handicapped children. At this time the institution grew to 17 buildings with as many as 220 patients and a staff of 300. It was known as the Seaside Regional Center.
In the 1980s, plans were made to move the children from an institutional setting to the main stream and group homes.
Sometime in 1988, the state began to look for a new use for the property. A facility study committee involving the Department of Mental Retardation (DMR), the Department of Public Works (DPW), the Office of Policy and Management (OPM) and the Town of Waterford was set up to consider the future use of the property.
Several new uses were proposed but never agreed to. In 1994, the town selectman held an informational meeting. The Town Planning Department began to study the future use of the area. This department prepared a plan for the "Seaside Residential District" which was the genesis of the proposal presented to the Commission in connection with the application now on appeal.
In 1997, the Seaside facility was closed. It has remained vacant ever since. A proposal that the town purchase the property, with the exception of four historic buildings to be retained by the state and a requirement that certain contamination be removed, for 12.4 million dollars was considered by the town but rejected. The DMR transferred the property to the state DPW and OPM recommending that it be used for housing. Defendant, HHC, was selected by the state from a number of applicants to develop the property in accordance with the proposed regulations. HCC then filed the application which is the subject of this appeal.
A public hearing on HCC's application to change the zone and amend the regulations was scheduled for February 10, 2003. The hearing was continued to March 10, 2003. On that date, the hearing was again continued to March 24, 2003. The meeting was again continued to April 8, 2003 when the parties were heard.
At its regular meeting held May 5, 2003, the Commission discussed the application and the exhibits admitted at the public hearing. The matter was then continued for further action at the next meeting. Mr. Wagner, Director of Planning, was requested to review specific items of the proposed regulations for that meeting. At the next meeting of the Commission held May 19, 2003, Mr. Wagner reviewed the proposed regulations together with recommendations suggested by the Office of Long Island Sound Program, the environmental planner and other specific items. Problems with the regulations were discussed and further action was deferred to the next meeting. Staff was asked to prepare a series of findings for review at that meeting. At the June 9 meeting, the draft documents prepared by staff were reviewed. Upon motion duly made and seconded, it was voted unanimously to grant the application to change the zone of the 36.3-acre parcel to Seaside Preservation Zoning District with modification. The Commission then stated the reasons for its action. The Commission next proceeded to approve the amendments to the zoning regulations with modification stating the reasons for such approval.
Within the time allowed by statute, plaintiff commenced the present appeal.
In deciding the issues presented by the appeal, the court is limited in its scope of review by statute and applicable case law. Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it. Tazza v. Planning Zoning Commission, 164 Conn. 187, 191 (1972). This court can sustain the appeal only upon determination that the action taken by the Commission was unreasonable, arbitrary and illegal; it must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised. Baron v. Planning Zoning Commission, 22 Conn. App. 255, 257 (1990). Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record. Primercia v. Planning Zoning Commission, 211 Conn. 85, 96 (1989). The question on review of the Commission's action is not whether the court would have reached the same conclusion but whether the record before the Commission supports the decision reached. Id.
Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principals of law. Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn. App. 466, 470 (1998).
The basic question raised in this appeal is whether or not the Commission abused its discretion in granting HCC's application to change the zone and amend the regulation.
In considering these issues, the court is mindful that a zoning commission, when changing a zone or amending zoning regulations, acts in a legislative capacity, and in so doing, it has broad discretion and the court on appeal should not substitute its judgment for that of the commission unless the appellants prove that the commission's action was clearly arbitrary or illegal. Burnham v. Planning Zoning Commission, 189 Conn. 261, 266 (1983). A zoning commission has broad discretion when it acts within its prescribed legislative powers. First Hartford Realty Corporation v. Planning Zoning Commission, 165 Conn. 533, 540 (1973). The question on appeal is not whether the court would have reached the same conclusion as the agency, but whether the record before the commission supports the decision reached. Burnham v. Planning Zoning Commission, supra, 189 Conn. 265.
The court allows zoning authorities this discretion in determining the public need and the means of meeting it because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Burnham, id.
When exercising its legislative function, however, the Commission's discretion is not wholly unfettered. It must follow the law. Woodford v. Zoning Commission, 147 Conn. 30, 31 (1959).
At the June 9th meeting, the Commission proceeded to first approve the change of zone. The Commission then took up and approved the proposed amendments to the zoning regulations which would establish the Seaside Preservation Zoning District. Plaintiffs have appealed both of these actions. In considering the issues now before the court, it is considered more appropriate to take up the issue concerning the amendment of the regulations first.
I
In approving the amendment to the zoning regulations at its June 9th meeting, the Commission gave the following reasons for its actions:
1. Regulations provide for the preservation of the site and contributing buildings as listed on the Register of Historic Places.
2. Regulations provide for public access opportunities to a waterfront site that is not considered suitable for a water dependent use. The site is considered suitable for waterfront public access as designated in the 1998 Plan of Preservation, Conservation and Development.
3. Regulations provide for design review and restrict land coverage, impervious coverage and building setbacks in a manner which is equal to or more stringent than allowed in the RU-120 zoning district.
4. The public purposes to be achieved as set forth in the proposed regulations are considered additional reasons for approval of the creation of the new zoning district.
The Commission approved the amendment with modifications which it found "necessary to provide sufficient standards, clarification of intent and to conform to recent changes in regulations."
Where, as here, the Commission stated the reasons for its action the court must decide whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the Commission is acquired to apply. The Commission's decision must be sustained if the record contains substantial evidence that supports any one of the reasons given. Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn. App. 442, 458 (2002).
Plaintiffs argue in their brief, that the regulations, as modified and adopted, are unconstitutional, arbitrary and unenforceable as they contain insufficient or ineffective standards. The burden of showing that the regulations are unconstitutionally vague rests with the plaintiffs. Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 5 (1992).
"[A] Commission's regulations must be reasonably precise in the subject matter and reasonably adequate and sufficient to give both the Commission and those affected by its decision notice of their rights and obligations. [V]ague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the Commission must be delineated in its regulations so as to avoid decisions, affecting the right of property owners, which would otherwise be a purely arbitrary choice of the Commission; such a delegation of arbitrary power is invalid." Barberino Realty Development Corp. v. Planning and Zoning Commission, 222 Conn. 607, 618-19 (1992) (citations and interior quotation marks omitted). In their brief plaintiffs quote a learned text in which the writer sums up the test as "whether a person of ordinary intelligence can know what is prohibited." Section 22.3 p. 490, Fuller Land Use Law and Practice.
A review of the proposed regulations as enacted with modifications, in the abstract, leads to the conclusion that such regulations are reasonably precise and adequate to give affected parties notice of their rights and obligations. The proposed regulations are as precise as the existing zoning regulations. Although plaintiffs dispute it, the proposed regulations are effectively integrated into the existing regulations. For example, the uses permitted in the Seaside Preservation Zoning District are made subject to the existing lot design standards of the existing § 3.34 and all of such uses are permitted only by the special permit provisions of the existing § 23. Section 11 of the proposed regulations is effectively tied into § 25 of the existing regulations also covering environmental protection. The modifications made by the Commission further integrated the new regulations into the existing regulations.
"Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation and redevelopment, 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. The test of the action of the Commission is two-fold: (1) zone change must be in accord with the comprehensive plan; and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." Harris v. Zoning Commission, 259 Conn. 402, 417 (2002) (citations and internal quotation marks omitted).
Plaintiffs point out specific language which could conceivably cause problems of application in specific situations. Courts do not usually decide such issues in a vacuum however. A party attempting to demonstrate that regulations are impermissibly vague and imprecise must generally do this in connection with the facts of a case. Connecticut Health Facilities v. Zoning Board, supra, 29 Conn. App. 6.
Plaintiffs have attempted an attack on the facial validity of the amendment in a situation where no adverse action with respect within the amendment has taken place. Such attack should be reserved to situations where adverse decisions applying the amendment could be presented to the court. Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 188 (2001).
In Bombero v. Planning and Zoning Commission of Trumbull, 218 Conn. 737, 745 (1991), the court held that "Where, as here, the plaintiff mount a general attack on a legislative enactment of a regulation, primarily based on constitutional vagueness grounds and combines therewith nonconstitutional grounds for the regulations invalidity, he must do so by a declaratory judgment action rather than an appeal from the enactment." There is nothing about the procedural posture of the case that would cause a deviation from the above-requirement.
Harris v. Zoning Commission, supra, 259 Conn. 417, stated that the test to be applied to the validity of an amendment to the zoning regulations was two-fold. It must be in accord with the comprehensive plan and it must be reasonably related to the normal police power purposes enumerated in § 8-2.
The comprehensive plan consists of the zoning regulations themselves and the zoning map which has been established pursuant to those regulations. Burnham v. Planning and Zoning Commission, supra, 189 Conn. 267. Although the amendment is specific in its application to the area of the zone change, a review of the existing zoning regulations and the zoning map indicates that it is consistent with the comprehensive plan. The regulations and the zoning map indicate that there are 20 zoning districts within the Town of Waterford. Some of these districts like the Seaside Preservation Zoning District created by the amendment appear to be designed for specific application. For example, the Civic Triangle District and the Special Aquifer Industrial Park District.
As previously noted, the amendment is tied directly into the existing regulations which make up the comprehensive plan.
The clustered, age restricted residential use created by the amendment is compatible with other zones existing under the regulations. For example, age restricted residential use is allowable in the R-40 zone adjacent to the area within which the amendment will be applicable. The setbacks and building coverage requirements under the amendment are also comparable to those found in the R-40 and RU-120 zones and are more stringent than those m the RU-120 zone.
To be valid, the amendment must be reasonably related to the normal police power purposes found in § 8-2. There does not appear to be any question but that the amendment is related to the police power purposes found in § 8-2. The amendment regulates buildings, the percentage of area which may be occupied, size of yards, density and location of buildings, procedures for special permits promotes the general welfare and makes reasonable provisions for the protection of historic buildings.
Section 8-2 also requires that zoning regulations, and any amendments, be in accordance with the comprehensive plan and provides that the "Commission shall consider the plan of conservation and development prepared under § 8-23." The Town of Waterford adopted, by resolution of the Commission effective October 1, 1998 a Plan of Preservation, Conservation and Development. This plan was produced under the provisions of C.G.S. § 8-23. A view of the record indicates that in enacting the amendment the Commission considered this document with great fidelity. The plan was placed in evidence before the Board and returned to court as a part of the record.
Defendants claim that the plan was not followed. It is noted that § 8-2 merely requires the Commission to consider the plan.
When the plan was approved in 1998, Seaside was closed and vacant. The plan specifically addressed Seaside and advised that the town should continue to actively participate in ongoing discussions with the state regarding the reuse of the property. The plan stated that the future use should take into consideration and be consistent with the residential uses in the area and provide public use of the waterfront. The plan also addressed the protection of historic structures and noted that Seaside was on the National Register of Historic Places.
A document entitled "consistency review" was also considered by the Board and made a part of the record. This document addresses the question of consistency of the Plan of Preservation, Conservation and Development to the proposed Seaside Preservation Zoning District and other related zoning regulations. Although the review appears to have been produced prior to the actual application now in question, it concludes that the amendment properly addressed the special needs of the coastal areas, open space, special needs, housing or persons over age 55 and historic preservation of buildings.
A review of the record leads to the conclusion that the amendment to the regulations approved by the Commission is not impermissively vague and imprecise as alleged by plaintiffs. In enacting the amendment to the zoning regulations, the Commission properly considered the Plan of Preservation, Conservation and Development. The regulations as approved are consistent with this plan and in accordance with the comprehensive plan and are related to the police powers enumerated in § 8-2.
The reasons given by the Commission for the approval of the amendment are valid supported by substantial evidence in the record and pertinent to the consideration which the Commission was required to apply.
II
Plaintiffs argue that the zone change must be overturned because it amounts to spot zoning and is not consistent with the comprehensive zoning plan as contained in the 1998 Plan of Preservation Conservation and Development.
"Our courts consistently have invalidated zoning decisions that have constituted spot zoning. Spot zoning is the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. The comprehensive plan is to be found in the scheme of the zoning regulations themselves." Michel v. Planning Zoning Commission. 28 Conn. App. 314, 319 (1992) (citations omitted; internal quotation marks omitted).
Case law on the question as to whether an area is too small so as to constitute spot zoning is not of particular assistance. In Pelchat v. Planning Zoning Commission, 162 Conn. 603 (1971), it was decided that rezoning a lot less than 150 square was spot zoning. In Kutcher v. Planning Commission, 138 Conn. 705 (1952), it was decided that it was not spot zoning to rezone a small tract where the new zone was appropriate to the area.
The area rezoned here is a 36.3-acre parcel. Plaintiffs do not specifically rely on a claim that the area of the zone change is too small. They argue that spot zoning does not turn on the size of the area rezoned. The parties here appear to agree that the essence of spot zoning is the "wrenching out of the character of and totally disruptive of the community as a whole."
A quote from HCC's attorneys presentation at the public hearing and used in plaintiffs' brief.
Even though Michel v. Planning Zoning Commission, supra, speaks of the zone change being in harmony with the "comprehensive plan for zoning adopted to serve the needs of the community as a whole." Plaintiffs claim that to avoid the onus of spot zoning, the change in zone must not disturb the tenor of the surrounding neighborhood. Pierrepont v. Zoning Commission, 154 Conn. 463, 469 (1967), supports this argument. In First Hartford Realty Corporation v. Plan Zoning Commission of Bloomfield, 165 Conn. 533, 541 (1973), the court laid down a two-fold test which a commission must meet in changing a zone. "(1) zone change must be in accordance with a comprehensive plan, and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." (Citations omitted.)
In enacting the change of zone, the Commission made the following modification:
Modification: The district boundary shall be reduced by the area of the land to be retained by the State of Connecticut, which shall include at least 120,000 square feet and not result in the creation of a non-conforming structure.
The Commission gave as the reasons for the change of zone:
1. Consistent with the 1998 Plan of Preservation, Conservation and Development which anticipated the transition of this site from State to Private ownership and regulation.
2. The district contains Historic Properties and public access opportunities and is therefore considered consistent with the Connecticut Coastal Management Act.
3. The character of the site is unique and warrants a separate zoning district in order to facilitate the preservation and restoration of this important resource. CT Page 6974
Plaintiffs differ with the Commission and claim that the change in zone is not consistent with the comprehensive zoning plan as contained in the 1998 Plan of Preservation, Conservation and Development. The comprehensive plan and the 1998 plan of development are not the same. The comprehensive plan is found in the scheme of the zoning regulations themselves. First Hartford Realty Corporation v. Plan Zoning Commission of Bloomfield, 165 Conn. 533, 542 (1973). The Plan of Preservation and Development is a document prepared under the provisions of C.G.S. § 8-23 and was adopted by resolution of the Commission. Section 8-2 requires that the Commission consider this plan.
Both plaintiffs and the Commission stress the importance of the Plan of Preservation, Conservation and Development. Although this plan is not the comprehensive plan with which the change of zone must be in accordance, under the facts of this case it must be concluded that the 1998 plan is a vital part of the comprehensive plan.
Many of the issues pertinent to the change of zone have been addressed in connection with the amendment which established the zone, for example, compliance with Connecticut General Statutes § 8-2 and the comprehensive plan.
The land use analysis placed in evidence for the Commission's consideration and the testimony of Mr. Cegan, ASLA, who helped prepare the analysis, indicated that the past use of the land had been for institutional use not typical of that found in the RU-120 zone. It was also pointed out that much of the surrounding land in the neighborhood did not conform to either the RU-120 or the R-40 zone standards. This was because the area had been developed prior to the current zoning regulations. Density under the new regulations would be compatible with that existing in the neighborhood. As previously stated in connection with the consideration of the amendments to the regulations, the development standards in the new zone would be at least equal to and in other cases more restrictive than those existing in the adjoining zones.
Age restrictive housing and nursing homes are allowed by special permit in the R-40 zone. Mr. Cegan and the analysis stated that under the new regulations such development would be limited and would be more compatible with the surrounding uses.
A review of the record clearly indicates substantial evidence that rezoning the 36.3-acre parcel will not disturb the tenor of the neighborhood and is in accord with the comprehensive plan. Plaintiffs have not proven that the change of zone constituted spot zoning.
The reasons cited by the Commission for the change of zone are pertinent to the considerations which it was required to apply and are supported by substantial evidence in the record.
The first reason stated by the Commission that the change of zone was consistent with the 1998 Plan of Preservation, Conservation and Development is well-supported by substantial evidence before the Commission. The plan, a part of the comprehensive plan, specifically addressed the Seaside problem. In changing the zone, the Commission followed the anticipated transition of the site to private use as contemplated in the plan.
The second reason cited by the Commission mentioned historic properties and public access opportunities and consistency with the Connecticut Coastal Management Act. The Connecticut Coastal Management Act must be considered as a part of the comprehensive plan. The testimony of Mr. Cegan and other substantial evidence indicates that with the change of zone and the amended regulations, the historic properties will be preserved and public access to the waterfront will be provided.
III
Considering all of the evidence in the record, it must be found that there is substantial evidence to support the reasons stated by the Commission for the amendment to the zoning regulations and the change of zone. Plaintiffs have failed to prove that in amending the zoning regulations and changing the zone the Commission has abused the discretion vested in it.
Accordingly, judgment is rendered in favor of the defendant Commission affirming the actions of the Commission.
Joseph J. Purtill, JTR