Opinion
No. CV 064018289
April 2, 2007
MEMORANDUM OF DECISION
The court heard this appeal together with another appeal involving the same parties, Docket No. CV06 4017515 (the subject of which was a moratorium imposed by the defendant). A separate opinion was issued on Docket No. CV06 4017515 on this date.
Plaintiffs, Jimmie's Incorporated, James S. Gagliardi and Paul M. Gagliardi bring this action requesting that the Court set aside the denials of Plaintiffs' Applications for Coastal Site Plan Review and Site Plan Review by Defendant Planning and Zoning Commission of the City of West Haven (Commission). They claim the Commission's actions were illegal, arbitrary and in abuse of its discretion because: 1) the Commission predetermined Plaintiffs' applications and denied Plaintiffs' request for recusal, thereby denying Plaintiffs a fair hearing; 2) the Commission was obligated to approve Plaintiffs' applications because they were in conformity with applicable regulations; and 3) the Commission failed to forward copies of Plaintiffs' Application for Site Plan Review to other agencies as required by Section 8-2.3 of the Land Use Regulations of the City of West Haven and reviewed the application before receiving the recommendations from those agencies as required by Section 8-2.4 of the Regulations. For these reasons, the Plaintiffs claim the Commission's denial should be overturned by sustaining this appeal.
The Plaintiffs are the owners of two parcels of land adjacent to and abutting each other, totaling 6.4 acres, known as 5 Rock Street in West Haven, Connecticut (Property). The Property is located on a waterfront site in a Shoreline Planned Development (SPD) district. Currently, the Property is utilized as a restaurant and a parking lot for the restaurant.
On November 15, 2005, Plaintiffs filed an Application for Site Plan Review and an Application for Review of Coastal Site Plans with the Commission seeking approval to construct a six-story residential building, adjacent to the existing restaurant. The proposed residential building would have 105 one-and two-bedroom units, with five living levels. A 5,000 square foot recreational sundeck would be on the waterside of the building, at the first floor level, abutting the boardwalk. The existing restaurant would be reduced from accommodating 474 seats to 225 seats.
As a result of being the owners of the subject property, the Plaintiffs are aggrieved parties and have a right to take this appeal.
Parking for 210 vehicles would be provided on-site for the residential building and in addition, 75 parking spaces would be set aside for the existing restaurant, which would provide a total on-site parking for 285 spaces. As part of the Plaintiffs' proposal, seating in the restaurant would be reduced from 474 to 225 patrons, thereby allowing the number of required parking spaces for the restaurant to be reduced from 159 to 75.
The Department of Planning and Development for the Commission recommended approval of both Applications with several conditions.
The Plaintiff's first claim is that the Commission predetermined the Applications. They argue that "(f)rom a practical standpoint, Commission members never intended to approve the Application with conditions or otherwise, because any such approval would have conflicted with the Commission's express desire to halt development in all SPD and SPDII districts . . ."
Our Supreme Court has held that "it is true that neutrality and impartiality of members of administrative boards and commissions are essential to the fair and proper operation of these authorities; [however] a charge of bias must be supported by some evidence proving probability of bias before an official can be faulted for continuing to execute her [or his] duties." (Internal citation omitted.) Obeda v. Board of Selectmen, 180 Conn. 521, 523-24 (1980). In this case there is not a scintilla of evidence that the four members of the Commission, who voted to deny the application, had any bias.
The mere fact that there were draft regulations to prohibit multi-family units in the zone for future applications, does not mean in applying the regulations in effect at the time the plaintiffs filed their applications, that they were close-minded and made up their minds prior to the public hearing.
Our Supreme Court has made it clear that: "[t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true." As the court noted in In re J.P. Linahan, Inc., 138 F.2d 650, 651-52 (2d Cir. 1943), `[t]he human mind . . . is no blank piece of paper . . . Interests, points of view, preferences, are the essence of living . . . An `open mind', in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being . . ." [Internal citations omitted in part.] Cioffoletti v. Planning and Zoning Commission, 209 Conn. 544, 555 (1989).
In this four against and one in favor vote by the Commission, it was clear that each member carefully considered the regulations as it pertained to the zone without regard to the proposed amendment. This case is clearly distinguishable from Marmah, Inc. v. Town of Greenwich, 176 Conn. 116 (1978). In Marmah the Commission applied the subsequent amended regulations and the court held that under the circumstances of that case, it was "inequitable to allow the changed building zone regulations to act as a bar" to the application which was pending. Id., 123. On that basis, the court found that the "commission voted with predisposition and predetermination . . ." Id., 123-4. In the present case the Commission applied the regulations that existed at the time the plaintiffs' applications were filed.
The Commission voted to deny the Coastal Site Plan application by a 3 to 2 vote; and to deny the site plan application by a 4 to 1 vote.
The Commission sets forth several reasons to deny the Plaintiffs' applications, one of which would have been adequate to support its denial. "The [Commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. The evidence, however, to support any such reason must be substantial . . ." (Internal citations omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-40 (1987);. Heithaus v. Planning and Zoning Commission, 258 Conn. 205, 221 (2001). The Court will discuss two of the several valid reasons set forth by the Commission.
Applicants for a coastal site plan must demonstrate the proposal is consistent with the goals and policies of the Coastal Management Act, General Statutes § 22a-90 et seq. (CMA). The Commission found and the evidence supports that the proposed activity was inconsistent with applicable goals and policies of the CMA. A policy of the CMA is "to manage coastal hazard areas so as to insure that development proceeds in such a manner that hazards to life and property are minimized and to promote nonstructural solutions to flood and erosion problems except in those instances where structural alternatives prove unavoidable and necessary to protect existing inhabited structures . . ." General Statutes § 22a-92(b)(2)(F). The Commission found the proposed multi-family building would be located within the coastal hazard area, with the majority of units located in the V-7 zone. V-zones are subject to direct action by waves three feet or more in height. Locating a high density residential complex in a V-zone poses the following dangers: (1) increased likelihood of damage to persons and personal property because of flooding and wave actions; (2) an increased risk to police and firefighters who may be called in to rescue persons who have failed or refused to evacuate their residences; and (3) the likelihood that flooding on the site would increase the pressure to install a seawall or other structural solutions to avoid a flooding problem, which the CMA explicitly discourages.
The Commission further found that the ground floor of the proposed multi-family building includes three sets of elevator lobbies, exit stair landings, and elevator machine rooms all below flood plain levels and thus subject to flood inundation. Locating the only access to this 105-dwelling unit condominium at elevations below flood levels will create hazards to life and property. Because of the proposed location of the multi-family building is within the V-zone and the fact that the only access is below flood elevations, the Commission found the application is inconsistent with the applicable goals and policies of the CMA regarding management of coastal hazard areas.
Parking would be inadequate. Although the Application proposed to reduce the parking now required by the existing restaurant, the plaintiffs indicated this would be accomplished by merely reducing the seating capacity and not by reducing the size of the exterior of the building which would permanently reduce the parking requirements (chairs and tables removed to accommodate the parking requirements could reappear after the multifamily building is constructed).
Finally, the Plaintiffs claim that the Commission's decision should be overturned because of its failure to forward the Application to various city agencies. This claim was never raised before the Commission. Therefore, any such requirement was waived by the Plaintiffs. See Dragan v. Connecticut Medical Examining Board, 232 Conn. 618, 632 (1992).
Accordingly, this appeal is dismissed.