Opinion
No. CV 08-4034369
September 9, 2008
MEMORANDUM OF DECISION
FACTS
This is an appeal by the plaintiff (hereinafter also "JZ"), from a denial by the Planning and Zoning Commission of the Town of East Hartford (hereinafter also "PZ"), of an application for a special permit to permit a Dunkin Donuts restaurant with a drive through facility attached to it. The property subject of this appeal is a parcel located at 12 Governor Street in East Hartford consisting of .9 acres located in a B-5 commercial zone. Governor Street runs east and west with the eastern end intersecting with Main Street and the western end intersecting with the entrance to I-84. Westerly of the property are two residential properties located in the same zone and which are non conforming uses in that zone. To the south of the site is Governor Street on the south side of which is an existing/proposed commercial development. To the north of property is a town park. The property is currently unimproved by any buildings. Its last use was a municipal parking lot. The property is located approximately 150 ft. from the intersection of Main and Governor Streets. A restaurant is a permitted use in this zone and on this site. The drive through facility attached to the restaurant can only be constructed and used by the PZ granting a special permit.
On July 23, 2007, JZ filed an application for special permit for a Dunkin Donuts restaurant with a drive through. The proposed building covers just 7.8% of the property. The property is accessed via a main driveway off Governor Street with a paved width of 16 ft.
The PZ held a public hearing on November 14, 2007. At that hearing JZ presented uncontradicted expert testimony from its team of experts including its traffic engineer, Bruce Hillson, a professional traffic engineer with 37 years of experience. The plaintiff claims that all of the experts through testimony and reports demonstrated the site's safe design and its compliance with all applicable zoning regulations including the regulations for a special permit. The PZ did not contest testimony from the plaintiff's experts that the site plan, which was also submitted, fulfilled all of the detailed criteria for a drive-thru in a B-5 zone as specified by Section 228.2 of the Zoning Regulations.
The site plan was denied because of the denial of the special permit.
Following the public hearing, the PZ held a regular meeting and voted unanimously to deny the special permit for the following reasons:
It should be noted that the PZ did not identify with any specificity any requirement in the regulations for a special use permit that was not satisfied by the plaintiff's application, proposal and evidence.
1. This special permit use for a restaurant with a drive through window will have a serious impact on the quality of life to the residents that abut the property.
2. This special permit use will in no way promote the health, safety and the general welfare of the community.
3. This special permit use for a drive through window is a traffic generator and is not in harmony with the intent of the zoning regulations.
4. This special permit use is likely to create traffic congestion or have traffic congestion problems or cause depressed valued properties or have other detrimental effects in the surrounding area.
See transcript of regular meeting, November 14, 2007, Exh. T-4, pp. 3 and 4.
The denial was published in the Hartford Courant on November 21, 2007. This appeal was timely filed. A hearing on the appeal was held before this Court on July 30, 2008.
AGGRIEVEMENT
Conn. Gen. Stat. § 8-8(a)(1) defines "aggrieved person as a person aggrieved by a decision of a Board . . . in the case of a decision by a Zoning Commission, Planning Commission, combined Planning and Zoning Commission or Zoning Board of Appeals . . . Aggrieved person includes any person owning land that abuts or is within a radius of 100 ft of any portion of the land involved in the decision of the Board."
It is well settled law in Connecticut that the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of decision as distinguished from a general interest such as is the concern of the community as a whole.
At the hearing on this appeal the Court heard testimony from James T. Zafiris who at all times has been the President of JZ. Mr. Zafiris testified that he entered into an agreement on July 25, 2006 between him and the owner of 12 Governor Street in East Hartford, plaintiff's Exh. 1 at the 7/30/08 hearing, the Governor's Building, LLC for the purchase of the subject site. The agreement, of course, was contingent upon zoning approval. This is the interest in the land which is the subject of this appeal. Mr. Zafiris also testified that between the date of the agreement, July 25, 2006 and the date the application was filed on July 23, 2007, he verbally assigned his interest in the agreement to JZ, the corporation that filed the application to PZ and is still the purchaser under the agreement of the subject property. He verbally conveyed his interest to the corporation of which he and his wife are equal stockholders and the only stockholders and have always been that way at all times pertinent to this application and appeal. Specifically, the plaintiff, JZ, had the interest under said agreement in the property on July 23, 2007 when it filed the application for a special permit and continuously through November 14, 2007 when its application was denied by PZ. Plaintiff continues to be the purchaser under the Purchase and Sale Agreement (plaintiff's Exhibit 1) and was same at all times pertinent hereto.
Counsel for the defendant stated at the hearing on this appeal that the purchase and sale agreement had expired. However, the Court has found that the agreement does not state that time is of the essence. Therefore, the time is a reasonable time, and it is obvious the reasonable time is fulfilled by the fact that there is a contingency of zoning approval which all parties recognized in the agreement with the knowledge that approval can take a long period of time.
Accordingly, the Court finds that the plaintiff is aggrieved by the decision of the PZ.
STANDARD OF REVIEW
A trial court may grant relief in an appeal from a decision of an administrative authority only where the authority has acted unreasonably, illegally, arbitrarily or has abused discretion. Smith v. Zoning Board of Appeals, 227, 71, 80 629 A.2d 1089 (1993). The Court, however, "may not substitute its judgment for the wide and liberal discretion vested in the local authority when acting within its prescribed legislative powers . . ." (Internal quotation marks omitted.) Frito Lay, Inc. v. Planning and Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988). The Court simply determines whether the record reasonably supports the conclusion reached by the agency. DeBerahinis v. Zoning Commission, 228 Conn. 187, 198, 635, A.2d 12-20 (1994).
"The burden of proof is on the plaintiff to demonstrate that the Board acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
"When ruling upon an application for a special permit, [however], a planning and zoning board acts in an administrative capacity." (Internal quotation marks omitted.) Erwin v. Planning Zoning Commission, 244 Conn. 619, 627 (1998). "Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the Zoning Regulations applies to a given situation and the manner in which it does apply . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted). Wood v. Zoning Board of Appeals, 258 Conn. 691, 697 (2001).
An agency is required by statute to state its reasons for granting or denying an application. The Court is then to determine whether there is substantial evidence in the record to support these reasons.
"Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations . . ." Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 247 (2003).
"In 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." (Emphasis added). Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215 (2001).
ISSUES AND FINDINGS
1. Are the First Two Reasons Given by the PZ for its Denial of the Application Supported by the Record?
The short answer is No.
It is well settled law in Connecticut that when a zoning commission gives its reasons for denying an application, the Court's duty is to determine if the record supports those reasons. In this case it does not. When the PZ has stated its reason for denial, this Court must only examine the adequacy of those stated reasons and cannot search the record for additional reasons. Kaufman v. Zoning Commission, 232 Conn. 122, 142 (1995). In Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544 (1991), the Court concluded that it must determine whether those grounds (the reasons for denial) "are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under [its] regulations."
The first reason given by the PZ is that:
This special permit use for a restaurant with a drive through window will have a serious impact on the quality of life to the residents that abut the property.It should be noted that all of the expert testimony was in support of the application. There was no expert testimony to contradict the applicant's expert testimony.
The Court has thoroughly reviewed the transcript of the November 14, 2007 public hearing and has found only these comments raised by residents of the area. These comments were set forth in the defendant's brief saying in effect that they raised concerns.
A citizen who lives on Governor Street complains that they are using trailer trucks, that people would be coming in and out in front of her living room, her husband has asthma and emphysema and had open heart surgery, he is going to breathe the air of what those cars are going to create for him. She also mentioned other neighbors who are unhappy because of the twenty-four-hour traffic, making noise, etc.
Irene Cone, an East Hartford resident stated: "we already have Dunkin Donuts. The traffic I think will be horrendous there, we have seniors living in the area and they'll cross the street and that will be very difficult because that light at Church Corners does not give you much time." She wants a real restaurant, not a drive through. It should be noted that Church Corners is not at the same intersection of Governor Street.
Ms. Aldona Saiminkas of 30 Governor Street spoke against the application. Her property does not abut the site. Ms. Saiminkas's use of her property as a resident is non conforming and is located in a B-5 zone. Nothing in the record indicates that Ms. Saiminkas is an expert in traffic, engineering, land valuation, economics, public safety or medicine. The PZ did not make a finding that the permitted special permit use of a drive through would have a significantly greater impact on the adjacent residential property than a use permitted as of right such as a Dunkin Donuts restaurant without a drive through. Simply, nothing in the record indicates that a drive through would have any additional impact on the adjacent property let alone a significantly greater impact.
Further, conclusory statements in a commission's resolution of denial do not constitute substantial evidence. See United Jewish Center v. Town of Brookfield, 78 Conn.App. 49, 58 (2003). "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Emphasis added). Riverbend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 71 (2004).
In addition, the plaintiff's expert, Frank Hubeny, an associate plainer with FLB Architecture and Planning and a member of the American Institute of Certified Planners, testified that the design of the drive through complied with all of the regulations enacted for the protection of the residential neighbors of the site. Outdoor speakers are oriented so that they face away from the residential neighbors, complying with the town's noise ordinance and are located 150 ft. from the residential property line on the west exceeding Section 228.2(h)'s requirement that such speakers be about 50 ft. from the property line of residential uses. He further testified that the noise from the outdoor speakers would result, by very conservative calculations, at a noise level at the residential property line that would be the same as a whisper in a quiet room. The menu board would not be larger than 20 sq. ft. with a maximum height of 6 ft. and will be shielded from the residential properties by the building and landscaping including a 6 ft. high white vinyl privacy fence and a mixture of trees that will grow to be 40 ft. tall by 35 ft. wide, all in compliance with the regulations. It should be noted that the PZ did not contest Mr. Hubney's testimony that the site plan fulfilled all of the detailed criteria for a drive through in a B-5 zone as specified by Section 228.2 of the regulations.
It should be noted that an architect and Vice President of FLB Architecture and Planning, Larry Frazier, testified for the applicant that he had discussed with town officials how to keep this site in harmony with the existing downtown area. The site was designed to blend into the Victorian atmosphere of the main business district through the use of Victorian motifs and coloring. Even Commissioner Grattole remarked that it was "a nice building."
There is substantial expert evidence that the drive through will not have a serious impact on the quality of life to the residents that abut the property and a lack of substantial evidence that supports the first reason for denial. The first reason, of course, is also a conclusory statement which is prohibited and is not supported by the record in any case.
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The second reason given for denial is: "This special permit use will in no way promote the health, safety and the general welfare of the community."
First, this is also a conclusory statement which is not permitted as a reason for denial as mentioned above. Second, general considerations regarding compliance with health and safety regulations do not provide a sufficient basis for rejection of a special permit. See Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370, 376 (1990).
PZ Commissioner Grattole made the statement that a drive through will adversely affect the health, safety and the general welfare of the community. However, there is nothing in the record to support his conclusion. In particular, there is nothing in the record that indicates a drive through would have a significantly increased impact on the general welfare of East Hartford than the use permitted as of right of a Dunkin Donuts without a drive through. Commissioner Grattole's statement was contradicted by Jeanne Webb, Director of Development for the Town of East Hartford who reminded the PZ of the site's safe design and reminded the PZ that no study shows traffic being blocked on Governor Street when people are entering or exiting the site.
Not only is the second reason for denial conclusory, but it is vague and general which is prohibited as mentioned above, and there is no substantial evidence that it will not promote the health, safety and general welfare of the community. To support the applicant's position the East Hartford Strategic Economic Development Plan cites vacant commercial properties in the Main Street area as a major problem. As noted, this property is close to Main Street and is vacant in a commercial zone. Further, the record shows that if the application is approved, the facility would employ five full-time people and twenty part-time employees. Finally, a Dunkin Donuts restaurant is a permitted use and there is nothing in the record that would indicate that a drive through would have a negative impact on the general welfare of East Hartford.
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The third and fourth reasons for denial are essentially a finding that the traffic would be a problem. Traffic issues are often cited by land use commissions. The specific language of the third and fourth reasons will be taken together and are as follows:
3. This special permit use for a drive through window is a traffic generator and is not in harmony with the intent of the Zoning Regulations.
4. This special permit use is likely to create traffic congestion or have traffic congestion problems or cause depressed valued properties or have other detrimental effects in the surrounding area.
These two reasons are clearly conclusory and should not be considered for the reasons stated above. Further, they are not supported by substantial evidence.
First, the special permit not being in harmony with the intent of the Zoning Regulations is clearly a vague and general statement which is not permitted, and there is no substantial evidence to support that conclusion. As for the fourth reason that " . . . cause depressed valued properties or have other detrimental effects in the surrounding area," is not only conclusory but is also vague and general, in addition to which there is no evidence from any expert that it will result in depressed value of properties. No appraiser testified that property would be devalued because of this permit, and the Court cannot think of a more general and conclusory statement than "have other detrimental effects in the surrounding area."
2. Is Traffic Congestion, Etc. a Sufficient Reason to Deny the Special Permit?
The short answer is No.
A commission "cannot capriciously ignore the testimony of expert witnesses." Tanner v. Conservation Commission, 15 Conn.App. 336, 341 (1988); Strong v. Conservation Commission, 28 Conn.App. 435, 441 (1992), which held that an administrative agency must not disregard or ignore the only expert evidence available on an issue and rely instead on their own knowledge and experience.
The only expert testimony on traffic was from the experts representing the applicant JZ. The testimony as to traffic from the plaintiff's traffic engineer, Bruce Hillson, a professional traffic engineer with thirty-seven years of experience, was filled with reasons and studies as to why there would not be traffic congestion because of the drive through of the Dunkin Donuts restaurant. Mr. Hillson provided a written report and testimony that the ingress and egress driveways at the site and nearby streets would operate safely and traffic on the public roadways would not be adversely affected by the project. He explained that he had conducted a traffic study that included counting the actual traffic volume and turning movements during the peak morning and peak evening hours. Mr. Hillson testified that the proposed drive through would be a low traffic generator because most of the people who will patronize the location are already on the roadway system. Through his study, he found that the intersection of Main and Governor Streets presently operates at the very best level of service (Service Level "A"). He further testified that if the application for a drive through were to be approved, the intersection would continue to operate at the very best level of service, and customers leaving the site would experience a medium level of service. He further indicated that he had studied the intersection of Governor and Main Streets during the highest hour of traffic and in no case did he find or observe a backup of more than six vehicles in the left hand turn lane on Governor Street and four vehicles on the outside lane, that the backup would not have any impact on automobiles trying to leave the site. He also provided a detailed analysis of accident data for that intersection and found that based on the Connecticut Department of Transportation data available the rear accident rate is lower than would normally be found at a signalized intersection. The latest three years of data available from the Connecticut DOT for the years 2003, 2004 and 2005 indicates a total of forty accidents at the intersection of Main and Governor Streets. Of those forty accidents, the vast majority (30) resulted in property damage only. He further testified that between the hours of 6:00 am. and 9:00 a.m., when the greatest level of activity would occur, there were only two accidents in the three-year period between 2003 and 2005. He testified that according to State DOT studies stacking of fourteen vehicles is all that is needed to address the potential high of 200 customers during peak hours and that the site plan has both adequate parking and stacking fully complying with the State DOT's recommendations for a Dunkin Donuts drive through.
Jim Dutton, the applicant's civil engineer, faced questions regarding patrons attempting to turn right out of the parking lot through the entrance and he offered to make further design changes such as additional signage and curbs which would prevent that. He also testified that delivery trucks will not have a problem accessing the site and will make deliveries during off-peak times. There was additional testimony on traffic from the traffic engineer, and the Court will not repeat all of it. Suffice it to say that the traffic engineer, in both a written report and through testimony, clearly opined with a basis for same; that the addition of the drive through with all of the actions that would be taken upon permit approval would result in a safe facility which would not result in the traffic congestion or generate traffic as described in the reasons for denial.
See footnote on page 21.
At another point, the East Hartford Town Plainer, Michael Dayton, stated that the "police department indicated that they did not have a problem with this application." Also see ROR 10. It should be noted that the East Hartford Police Department is the traffic authority in the town of East Hartford. Conn. Gen. Stat. § 14-297(b).
It is true that a commission may rely on its own knowledge and experience when evaluating such issues as traffic congestion, but it must reveal publicly its special knowledge and experience, and it cannot ignore uncontradicted expert testimony. Fienson v. Conservation Commission, supra at 428-29. Generally, when the questions regarding traffic go beyond the ordinary knowledge of lay people, expert testimony is required. Knowledge of how a drive through would impact traffic conditions and on-site traffic congestion is beyond the knowledge of lay members of the PZ. Furthermore, it is beyond the lay knowledge of the PZ as to whether the specially permitted use of a Dunkin Donuts restaurant with a drive through would have a significantly greater impact on traffic congestion than a Dunkin Donuts restaurant without a drive through which is a use permitted as of right. Only experts can provide those conclusions. The Appellate Court has held in Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 661 (2005), that lay testimony in the record regarding traffic was not sufficient to constitute substantial evidence. In that case, the Court found "one of the two board members voting to deny the variance cited safety concerns as his chief reason for his vote. The record reveals that several individuals who own property near the plaintiff's lot testified as to their concerns regarding traffic and safety for the variance to be approved . . . The record, however, is devoid of any studies of traffic patterns or analysis of how a house built on the plaintiff's lot might contribute to the traffic and safety hazards that already exist or create new hazards." In that case there was no expert testimony and the Court concluded that the zoning authority could not consider lay testimony because it was not substantial evidence. It indicated that expert testimony would have been necessary. In the case at bar, there was no expert testimony in opposition to the application for a special permit, and all of the expert testimony was from the applicant. In the case at bar, the opposite exists to that in Sydoriak, supra, in that it is the plaintiff who had the expert testimony, and the defendant did not. The main conclusion to be reached from Sydoriak, supra, is that on a complex issue such as traffic, expert testimony is needed and lay testimony is not substantial evidence, particularly when the other side has the expert testimony which cannot be disregarded.
The commissioners failed to reveal any special knowledge or experience not common to other lay people.
Again, the Court has reviewed the November 14, 2007 transcript of the public hearing, and there were concerns raised by some of the commissioners as well as a few residents about traffic. Commissioner Grattole asked questions of the experts but mainly made his own comments. Commissioner Roczynski at pp. 46-47, expressed concern about the number of stacking vehicles but was assured by the plaintiff's expert that it was in conformity with the study done by the State of Connecticut DOT. Commissioner Grattole admitted he is not an engineer but then went on to talk with Mr. Dutton, the plaintiff's civil engineer, about catch basins and drainage which are complex issues which can only be addressed by an expert. Commissioner Grattole and the chairman of the commission also indicated their opinions on traffic, but the plaintiff's traffic expert, Mr. Hillson, offered forty photographs taken from 7:45 a.m. until 8:45 a.m. and found that in no case was there a backup on Governor Street of more than six vehicles in the left turn lane and four vehicles in the outside lane. Concerns were expressed by other commissioners. Commissioner Bonzani described his experience of severe automobile accidents, but this was countered by Mr. Hillson with statistics and studies indicating a minimum amount of accidents. Commissioner Salemi stated her opinion that the traffic has increased. There were other comments from the commissioners and one or two residents speaking about the traffic. However, the traffic patterns on site have been carefully planned by the traffic experts of the plaintiff and data has been compiled by both the East Hartford Police, the State Department of Transportation and the plaintiff's traffic engineer showing that use of a drive through by special permit would not produce traffic congestion or unsafe traffic.
Certainly, the opinions and comments of the commissioners who are lay people and not experts in traffic do not constitute substantial evidence in opposition to the special permit. Further, the PZ in this case did not make the finding that the specially permitted use of a drive through would significantly increase traffic more than a permitted use of the property would.
In Cambodian Budest Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 384 (2008), the Court stated that only "if a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, the additional congestion may provide a basis for denying the permit." (Emphasis added.) It further stated in footnote 32 that "traffic impact on an application for special exception also be measured against that which could arise under permissible use," and cited a Pennsylvania case that a Board may lawfully deny a special permit if the proposed use would have a greater impact on the traffic in the area than would other permitted uses not subject to special permits.
For all the reasons stated above, this Court concludes that there was not substantial evidence to find that there would be traffic congestion sufficient to deny the permit and to support reasons three and four of the PZ's denial.
CONCLUSION
For the foregoing reasons the Court concludes that the PZ acted unreasonably, arbitrarily and in abuse of its discretion. The plaintiff's appeal is, therefore, sustained, and the application is remanded to the PZ with instructions to approve the special permit forthwith subject only to standard and customary conditions.
Members of the PZ did ask questions of the experts, and on occasion the expert offered to make changes to satisfy the concerns stated. For example, when the chairman questioned about people making a right hand turn into the entrance, Mr. Hillson offered to "design the curve line so that it's curved around to the left and reconfigure it a little." Hearing transcript pp. 83-85. It would appear that such offers should be made part of the conditions.