Opinion
No. 563965
November 5, 2003
MEMORANDUM OF DECISION
I
STATEMENT OF APPEAL
The plaintiffs, Agnes J. Kulos, Steve and Carol Curland and the Carroll Avenue Neighborhood Association, appeal from the decision of the defendant, the commission on the city plan of the city of Norwich, granting an application of the defendant, Slater Norton Corporation, for a special permit to allow the expansion of a parking lot on its property. The plaintiffs bring this appeal pursuant to General Statutes § 8-8. For reasons hereinafter stated, the appeal is dismissed.
II. BACKGROUND
The defendant, Slater Norton Corporation (Slater), is the owner of the property located at 21 Carroll Avenue in Norwich, Connecticut (subject property). The plaintiff, Agnes Kulos, is the owner of property located at 327 Broadway in Norwich, Connecticut. The plaintiffs, Steve and Carol Curland, are the owners of property located at 26 Carroll Avenue in Norwich, Connecticut. Finally, the plaintiff, the Carroll Avenue Neighborhood Association (association), is an association consisting of members who own property located within a hundred feet of the subject property.
A review of the record reveals the following facts. On September 19, 2002, Slater and Norwich Free Academy (academy) filed an application for a special use permit and site plan approval that sought authorization to expand its existing parking lot from its current 84 spaces to one hundred and fifteen spaces, pursuant to § 8.2.2 of the city's zoning regulations. On October 1, 2002, October 8, 2002, October 9, 2002 and October 10, 2002, notice of the public hearing regarding Slater's application was published in the Norwich Bulletin. On October 15, 2002, a public hearing was conducted by the defendant, the Norwich commission on the city plan (commission) that addressed several applications, including Slater's. After the public hearing was closed, the commission members voted 4-1 in favor of granting Slater's application with a stipulation that the parking lot could not be utilized by students but only by staff, visitors and invitees.
Kulos, the Curlands and the association now appeal the commission's decision granting Slater's application for a special permit expanding its existing parking lot. On July 17, 2003, the court held a trial on this matter.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from the decision of a municipal planning or zoning commission to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A.
Aggrievement
"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 one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8 (a) (1). "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
At the trial held on July 17, 2003, the Curlands submitted evidence to the court establishing that they are owners of property located within a hundred feet of the subject property. Specifically, the Curlands submitted a warranty deed identifying them as the owners of property located at 26 Carroll Avenue in Norwich, Connecticut, that is located within a hundred feet of the subject property. Accordingly, it is found that the Curlands are statutorily aggrieved pursuant to § 8-8 (a)(1).
A review of the file reveals that Kulos has filed an appearance in this action. At the trial, however, no evidence was submitted establishing her aggrievement. Further, a review of the file reveals that neither Kulos nor the association have filed memoranda of law; therefore, for the purposes of this decision the court will refer to the Curlands and their arguments when addressing the merits of this appeal.
The court must also determine whether the association is a proper aggrieved party pursuant to § 8-8 (a)(1). Our Supreme Court has adopted the test for associational standing as set forth in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). "Under that test [a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 434, 829 A.2d 801 (2003).
At the trial, the Curlands testified that they are members of the association. Furthermore, the Curlands are parties to this action and have been found aggrieved by the commission's decision. Additionally, the members of the association are either owners or tenants of property that are located within one hundred feet of the subject property. Accordingly, it is found that the first requirement of the test set forth in Hunt is satisfied.
Furthermore, at trial, it was established that the purpose of the association is to protect and enhance the residential neighborhood. It is therefore found that the purpose of the association relates to this appeal in the fact that the association is trying to protect the quality of the neighborhood, therefore the second requirement of the test is satisfied. See Fort Trumbull Conservatory v. Planning Zoning Commission, Superior Court, judicial district of New London-Norwich at New London, Docket No. CV 01 0560781 (February 21, 2003, Hurley, JTR.) (The trial court determined that because the "[association's] primary function is to preserve . . . the area and this appeal directly correlates to the [association's] goals" then the second requirement was satisfied.)
The plaintiffs in Fort Trumbull Conservatory v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 01 0560781, filed a petition for certification to the Appellate Court that was denied on July 24, 2003. The plaintiffs then filed a petition for certification to the Supreme Court that was denied on September 10, 2003
Finally, the association is seeking the reversal of the commission's decision and a restraining order to prevent Slater from constructing the proposed parking lot until the merits of this appeal can be determined. "[T]he propriety of accepting [r]epresentational standing depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured . . ." (Internal quotation marks omitted.) Connecticut Associated Builders Contractors v. Anson, 251 Conn. 202, 210, 740 A.2d 804 (1999). Therefore, it is found that the association has satisfied the final requirement of the test.
Accordingly, for the abovementioned reasons it is found that the association, by satisfying the requirements of the representational standing test, has standing to represent its aggrieved members for the purposes of this appeal. See Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 395, 610 A.2d 620 (1992) (If the requirements of the representational standing test articulated in Hunt are satisfied then an association has standing to represents its members that are aggrieved by the board's decision.)
B.
Timeliness and Service
"[A]ny person aggrieved of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of tine as prescribed for civil actions brought to that court." General Statutes § 8-8 (b). "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8 (f).
On October 17, 2002, notice of the commission's decision was published in the Norwich Bulletin. On October 31, 2002, this appeal was commenced by service of process upon Ralph Page, the chairman of the commission, Sandra Green Halgit, the assistant city clerk for the city of Norwich and Dr. Mary Lou Bargnesi, the superintendent of the academy. Accordingly, it is determined that the appeal was commenced in a timely manner upon the proper parties.
IV. SCOPE OF REVIEW CT Page 12163
"A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-16, 779 A.2d 750 (2001). "When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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." (Internal quotation marks omitted.) Id., 217. "[B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." Bethlehem Christian F. v. Planning Zoning, 73 Conn. App. 442, 457, 807 A.2d 1089, cert. denied 262 Conn. 928, 814 A.2d 379 (2002).
"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 . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication . . . On the other hand, it is review of such breadth as is entirely consistent with effective administration." Id., 458.
"In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . 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 . . . to support any such reason [however] must be substantial . . ." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221. "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The [decision] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).
The commission stated the following as its reasons in support of its decision to grant Slater's application. The commission determined that, pursuant to § 17.2.3 of the city's zoning regulations, "the character of the neighborhood, the parking lot will not be detrimental; traffic, this will help an existing problem; future development will not be harmed." Accordingly, because the commission stated its reasons in support of its decision then it is the responsibility of this court to examine the record in order to ascertain whether the commission's reasons are reasonably supported by evidence contained in the record.
V. DISCUSSION
The Curlands appeal the commission's decision on the grounds that the commission acted illegally, arbitrarily and abused its discretion in various ways. First, the Curlands argue that the expansion of a parking lot does not constitute an educational use as required under § 8.2.2 of the city's zoning regulation that provides for a special exception under § 8.1.2 of the city's zoning regulations. Second, the commission's decision resulted in an illegal expansion of a nonconforming use. Third, Slater's application does not satisfy the requirements as set forth in § 17.2.3 of the city's zoning regulations. Specifically, it is the Curlands' contention that the parking lot will be out of character with the neighborhood, that it will increase the traffic situation within the neighborhood and that the expansion of the parking lot will impact the future development of the neighborhood.
The Curlands appeal the commission's decision on the grounds that the commission acted illegally, arbitrarily and abused its discretion in the following ways: (1) the commission did not have the authority to grant a special permit pursuant to §§ 8.2.2 and 8.1.2 of the town's zoning regulations; (2) the commission improperly granted a special permit in a R-25 residential zone; (3) the commission failed to consider evidence presented at trial regarding the subject property; (4) the commission allowed the illegal expansion in a R-25 zone; (5) the commission failed to consider evidence submitted at the public hearing demonstrating that the application would not be in harmony with the character of the neighborhood; (6) the commission failed to consider evidence that the expansion would affect the property values of neighboring properties; (7) the commission limited the testimony provided by the plaintiffs; (8) the commission's decision was contrary to the city's zoning regulations; (9) that the commission's decision was contrary to law; (10) the public hearing was tainted by the participation of a board member who had a conflict of interest; (11) the commission's decision is inconsistent with the city's plan of conservation and development and (12) the commission's decision was not supported by substantial evidence. (Appeal, ¶ 14.) The Curlands, however, fail to brief many of the abovementioned grounds and, therefore, they are deemed abandoned. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 38, 717 A.2d 77 (1998) (issues that have not been adequately briefed may be deemed abandoned).
In opposition, Slater sets forth several arguments. First, that the expansion of the existing parking lot is an accessory to the principle use of the property, which is an educational institution, i.e., the academy, and, therefore, it is a permitted use pursuant to §§ 8.2.3 and 8.1.4(h) of the city's zoning regulations. Second, Slater contends that the granting of its application does not result in an improper expansion of a nonconforming use. Third, that if it is determined that its application resulted in the extension of a nonconforming use then the expansion of the parking lot is merely an intensification and not an expansion of a nonconforming use. Fourth, that its application did satisfy the requirements as set forth in § 17.2.3 of the city's zoning regulations. Finally, that the record will establish that the commission's decision in granting Slater's application was supported by substantial evidence.
On June 9, 2003, Slater submitted a memorandum of law that addressed the Curlands' arguments. On June 6, 2003, the commission and the city of Norwich, anticipating the filing of Slater's memorandum of law, filed their own brief and adopted the legal arguments as set forth by Slater. Therefore, when the court refers to Slater's legal arguments that it is also referencing the joint arguments of the commission and the city.
A.
Whether Slater's Application Satisfies the Requirements Set Forth in § 17.2.3 of the City's Zoning Regulations.
The Curlands maintain that the commission improperly granted Slater's application because it failed to satisfy the requirements set forth in § 17.2.3. Specifically, the Curlands argue that Slater failed to submit substantial evidence in support of its application to demonstrate that the granting of a special permit would not violate § 17.2.3 of the city's zoning regulations. In opposition, Slater maintains that it presented substantial evidence to support its application through the use of expert testimony, traffic reports and a landscaping design. Slater argues that it has proven, through the submission of such evidence, that the special permit it sought was in accordance with the requirements of § 17.2.3.
As previously mentioned, the commission officially stated its reasons for the approval of Slater's application. The commission found that Slater's application satisfied the requirements of § 17.2.3 of the city's zoning regulations. This court, therefore, is limited to an examination of the record in order to determine whether the record reflects that the commission's decision was supported by substantial evidence.
Section 17.2.3 sets forth specific criteria that the commission must examine when considering a special permit application. Section 17.2.3 provides in pertinent part: "Prior to the granting of a special permit, the commission must determine that the use will be harmonious to the surrounding neighborhood, [and] that it will not negatively impact the character of the area or diminish the quality of life . . . The commission shall review the following as criteria for grating a special permit: (A) Character; (B) Traffic; (C) Future Development; and (D) Additional requirements." Accordingly, the court must address each factor separately in order to decide this appeal on its merits.
1. Whether There Will Be a Detrimental Effect on the Character of the Neighborhood.
The Curlands maintain that the proposed parking lot will be out of character with the neighborhood because the location of a parking lot within a residential neighborhood "would not be in harmony with the appropriate and orderly development of the area." Specifically, the Curlands argue that drainage, lighting and noise would adversely affect the neighborhood. In opposition, Slater contends that it has provided substantial evidence to the commission that it had satisfied the requirements of § 17.2.3 of the city's zoning regulations.
Section 17.2.3(A) provides: "The nature, location, size, intensity and site layout of the use shall be such that it will be in harmony with the appropriate and orderly development of the area in which the use is situated and that its operations will not be detrimental by reason of dust, noise, odor, fumes, explosion, glare, drainage, or sewage problems. In addition, the appearance of any structures shall physically and architecturally complement the neighborhood in which the property is located as deemed by the commission."
At the public hearing, Bruce Hillson, an employee of Traffic Engineering Solutions, testified and submitted a traffic study conducted by his employer indicating that the proposed parking lot expansion would not affect the character of the neighborhood. Specifically, Hillson testified that the proposed parking lot would not "detrimentally impact the character of the area . . ." Hillson's statement is supported by the traffic study wherein the study concluded that the proposed parking lot would not have a detrimental impact on the character of the neighborhood.
At the public hearing, Tom Cummings, a principal of CLA Engineers, testified that lighting from the parking lot would not affect the neighborhood. Specifically, Cummings explained that it was Slater's intent to place "12-foot high shoebox type lighting. Again, from the lighting analysis that was done, there's no spillage off the site and the shoe boxes are directed down so it is local and internal within the boxes so that they don't emit that glow of light that you see from other areas." Cummings further stated that it was Slater's intent to maintain trees in the area and provide additional landscaping in the area.
Moreover, Mary Villa, a landscape architect, testified that a buffer would be erected to shield the proposed parking lot from the neighborhood. Specifically, Villa stated that a "buffer would be augmented with evergreen and solid visual screening"; and that the purpose of the buffer is "to . . . protect from noise, [and] headlight glare . . ." Villa further indicated that twelve arborvitaes, seven evergreens, one deciduous and twenty shrubs would be planted on the subject property.
At the public hearing, members of the association testified that they were opposed to the expansion of a parking lot. Specifically, the issue of drainage was raised by Tim Barry, a member of the association, who testified that the neighborhood suffers a drainage problem when it rains and that it will worsen when the proposed parking lot is expanded. William Sweeney, the city planner, responded to Barry's statement and acknowledged that a drainage problem did exist in the neighborhood but, according to the department of public works (department), the drainage problem originated from "a crushed drainage pipe in the Broadway system that's causing that flooding problem." Sweeney further stated that the department represented that the proposed parking lot expansion would not "impact on that existing problem."
A review of the record reveals that the commission's conclusion, that the proposed parking lot would not detrimentally affect the character of the neighborhood, is supported by substantial record evidence. Specifically, the testimony of Villa and Cummings supported the commission's reasoning that the character of the neighborhood would not be affected because the buffer and additional landscaping would complement the neighborhood, that lighting from the parking lot would not spill out into the environment of the neighborhood and that a buffer would protect the neighborhood from noise and glare as a result of the parking lot. Furthermore, Sweeney's testimony established that the proposed parking lot would not affect drainage within the neighborhood.
2. Whether There Will Be a Detrimental Impact on Traffic.
It is the Curlands' contention that the commission improperly granted Slater's application because the proposed parking lot will increase traffic in the neighborhood. The Curlands argue that the entrance and exit to the proposed parking lot will suffer an increase in traffic and it will threaten the safety of the public because the intersection is already considered hazardous. In opposition, Slater maintains that it submitted substantial evidence to the commission demonstrating that the traffic situation within the neighborhood would not be affected by the proposed parking lot.
Section 17.2.3(B) provides: "The proposed trafficways are adequate to accommodate any increase in traffic, that any such increase in traffic will not detrimentally impact the character of the area or conflict with the normal traffic within the neighborhood and the use will not cause or detrimentally impact safe vehicular and pedestrian conditions."
As previously stated, Hillson testified at the public hearing that his company conducted a traffic study to understand how traffic patterns would be affected by the proposed parking lot. Hillson concluded that the proposed parking lot expansion would not "detrimentally impact the character of the area or conflict with the normal traffic within the neighborhood, and the expanded parking lot will not cause or detrimentally impact safe vehicular and pedestrian traffic conditions . . ." Hillson noted that there would be a slight increase in traffic patterns during peak hours of the day but that this increase still fell within the acceptable standards of the traffic engineering field. An unidentified speaker questioned Hillson about what the impact on traffic would be if academy students were permitted to use the proposed parking lot. Hillson was unable to respond because the traffic study focused only on the use of the proposed parking lot by faculty, staff and business invitees.
In addition, the traffic study revealed that there would be no access to the proposed parking lot from Carroll Avenue. After the traffic study was conducted, it was determined that the "[c]apacity analyses indicate that no change is expected in traffic operations on Broadway at its intersections with Washington Street/Carroll Avenue and at the North Parking Lot drive. Any added delays and stacking associated with the added cars entering and leaving the North Parking Lot will occur on the drive and impact the traffic operations on Broadway or at its intersection with Washington Street and Carroll Avenue." The traffic study indicated that "the existing drive to the North Parking Lot is adequate to serve the added trips associated with the parking lot expansion." The traffic study concluded that the proposed parking lot would be in accordance with § 17.2.3 of the city's zoning regulations.
It must then be determined that a review of the record confirms that the commission's determination that the proposed parking lot expansion was in accordance with § 17.2.3 and that it would alleviate the existing traffic situation was supported by substantial evidence, such as the traffic study and Hillson's testimony. Specifically, the record reflects that the commission relied upon such evidence in concluding that the proposed parking lot would not detrimentally affect the character of the neighborhood, substantially interfere with the flow of normal traffic or result in traffic congestion. Accordingly, the court finds that substantial record evidence supports the commission's reason that the proposed parking lot would not affect the flow of traffic or cause traffic congestion within the neighborhood.
3. Whether the Proposed Parking Lot Will Negatively Impact the Neighborhood Development.
The Curlands further maintain that the commission improperly granted Slater's application because the proposed parking lot would adversely affect the development of the neighborhood. Specifically, they contend that evidence was submitted to the commission in the form of testimony by several neighbors at the public hearing that they may be less inclined to improve their homes and this would likely result in a decline of their property values. In opposition, Slater maintains that the commission, after viewing the evidence submitted by Slater, properly concluded that it had satisfied the requirements as set forth in § 17.2.3.
Section 17.2.3(C) provides: "The location and height of buildings, the location and nature and height of walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings or impair the value thereof."
As previously stated, expert testimony indicated that Slater planned to improve the landscape on the subject property by planting a significant amount of trees and shrubbery. One member of plaintiff, Tim Barry, testified at the public hearing that he was concerned that the proposed parking lot would affect property values in the neighborhood. Barry maintained that he had recently sided his home and he expressed his concern that the proposed parking lot would affect the value of his home. Several others spoke in opposition during the public hearing. No one, however, submitted any evidence to the commission demonstrating that the proposed parking lot would detrimentally affect the development of the neighborhood or that there would be a decrease in property values.
It is therefore found that a review of the record supports the commission's conclusion that the proposed parking lot would not harm the future development of the neighborhood. Specifically, the record reveals that the commission relied on testimony and evidence regarding both the character of the neighborhood and traffic, thereby properly concluding that the future development of the neighborhood would not be detrimentally affected by the proposed parking lot. Further, the record reveals that the opposition submitted no evidence to establish that the proposed parking lot would affect the property values of the neighborhood. Barry was the only person to express a personal concern that he thought the proposed parking lot would affect his property values. Moreover, Barry did not state that he would be less inclined to improve his property in the future, he only questioned the effect the proposed parking lot would have on the value of his property.
For the above-mentioned reasons, it is found that a review of the record confirms that the commission's determination that "the character of the neighborhood, the parking lot will not be detrimental; traffic, this will help an existing problem; future development will not be harmed"; was supported by substantial record evidence.
B.
Whether the Expansion of the Lot Constitutes an Educational Use as Required By §§ 8.2.2 and 8.1.2 of the City's Zoning Regulations.
The Curlands further contend that the commission improperly approved Slater's application for a special permit because the specific use sought by Slater is not a permitted use as set forth in the city's zoning regulations governing an R-25 zone. Specifically, they argue that neither § 8.2.2 of the city's zoning regulations nor the exceptions set forth in § 8.1.2 authorizes a parking lot in an R-25 zone. Slater contends that the "proposed 31 parking space expansion is an accessory to the principal educational use." It is Slater's contention that § 8.2.3 of the city's zoning regulations provides that an accessory use allowable under § 8.1.4 of the city's zoning regulations is also a permitted use within an R-25 zone. Therefore, it concludes that the proposed parking lot expansion is an accessory use that is permitted under § 8.1.4 to the principal use as defined under § 8.2.3.
Section 8.2.3 of the regulations governs accessory uses in an R-25 zone and provides that "Accessory buildings and uses subordinate and customarily incidental to any of the foregoing principal uses. (a) Any accessory use permitted in R-80 and R-40 residence districts, section 8.1.4 only." Section 8.1.4 provides in relevant part:
"Accessory buildings and uses subordinate and customarily incidental to any of the foregoing principal uses . . . (h) Off-street parking facilities in accordance with chapter 15 hereof . . ." Section 8.2.2(a) governs uses in an R-25 zone and provides that the commission may grant a special permit for the following use: "Any building or use allowed by special permit in R-80 and R-40 residence districts, section 8.1.2 hereof." Section 8.1.2(b) provides that the commission may issue a special permit for the following use: "Philanthropic, educational, recreational, religious and eleemosynary use by a duly incorporated nonprofit body or government unit."
A review of the above-mentioned regulations reveals that a special permit may be issued in an R-25 zone, pursuant to § 8.2.2, if the use also would be a permitted use in either an R-80 zone or an R-40 zone. In an R-80 zone, an educational institute may seek a special permit for off-street parking. Therefore, Slater, pursuant to § 8.2.2, sought the permit based on the status of the academy as an educational institute. Under the city's zoning regulations, the commission has the authority to approve a special permit application of an educational institute for the purposes of parking in an R-25 zone. The commission, acting in its administrative capacity, granted Slater's application after having determined that it complied with the requirements of § 17.2.3 and that the proposed parking lot was a permitted use as set forth in the city's zoning regulations.
Accordingly, it must be concluded that because the record reasonably supports the commission's decision that Slater's application satisfied the requirements of § 17.2.3 the court finds that the commission implicitly found that the proposed parking lot was a permitted use pursuant to the abovementioned regulations.
C.
Whether the Proposed Parking Lot is an Expansion of a Preexisting Nonconforming Use.
The Curlands also maintain that the commission's approval of Slater's application resulted in the illegal expansion of a preexisting nonconforming use. Specifically, the Curlands contend that the academy is a preexisting nonconforming use and that Slater's application for the proposed parking lot expansion sought to extend "its parking by building a parking lot on the subject property." The Curlands further argue that under the city's regulations the proposed parking lot is not permitted in an R-25 zone and, therefore, the commission's decision resulted in illegal expansion and extension of a nonconforming use. The Curlands cite Raffaele v. Planning and Zoning Board of Appeals, 157 Conn. 454, 254 A.2d 868 (1969), in support of their argument.
In opposition, Slater maintains that the Curlands improperly rely on Raffaele. Specifically, Slater argues that the Supreme Court in Raffaele held that the "board imposed conditions not authorized by . . . zone regulations and improperly concluded that the requirements for a granting a special exception had been met." Slater further maintains that it is an "established policy of these agencies to permit those uses that are allowed by special permit to expand provided that they made application for a special permit for the proposed expansion."
It is found that Raffaele is distinguishable from the facts in the present case. In Raffaele, the applicant, a nonprofit private club (club) filed an application to "add to the club's land." Id., 456. The application was subsequently denied by the building inspector because he had determined that the club had "sought to extend or add to a legally nonconforming use." Id., 457. The club appealed to the zoning board of appeals (board) regarding the building inspector's denial of its application "to make this addition to its existing nonconforming property." Id., 457. The club's appeal stated that "it sought to [e]xtend land of permitted non-conforming use property" and the club further sought a special exception. Id., 456. The board granted the club's application for a special exception subject to certain condition and limitations imposed upon by the board.
The Supreme Court concluded that the board, in granting the club's application, "ignored the appeal and did not decide the issue presented by it. [Instead] [the board] devoted its attention to the application for the special exception and stated the issue before it . . . [was] for authorization as a special exception to permit extension of a nonconforming private club use . . ." (Internal quotation marks omitted.) Id., 458. The Supreme Court noted that the club had never previously applied for a special permit exception and that the board's action "must be viewed in the light of the fact that it had never determined, and had never been asked to determine, whether the use which the club has made, and is making, of its existing property could meet the requirements of the regulations for a special exception." Id., 462-63. The Supreme Court found that the conditions and limitations imposed upon by the board coupled with the granting of the club's application for a special exception "was to permit an extension of a nonconforming use which the club was already making of its existing property . . ." Id., 462. The Supreme Court further concluded that whether "the club could qualify for a special exception under the regulations in view of its existing activities is, at least, not clear." The Supreme Court ultimately found that the board's decision permitted the club to both extend and expand a nonconforming use that already existed on the subject property and, therefore, the board had improperly found that the club had satisfied the requirements for a special permit.
In the present case, the commission's decision, that Slater's application satisfied the requirements as set forth in § 17.2.3, was supported by substantial evidence contained in the record. Furthermore, the issue of the academy's status as nonconforming was not submitted to the commission and, therefore, the commission did not have any evidence before it in order to determine whether Slater's application resulted in an expansion of a nonconforming use. The only time the status of the academy was addressed was at the public hearing when Attorney Fitzgerald commented on the status of the academy as nonconforming. In Raffaele, the status of the club as nonconforming was the primary issue that had been submitted to the board, which chose to ignore it and rule only on the club's application for a special exception. In the present case, the status of the academy was only mentioned once in passing and the commission was not required to determine whether Slater and the academy sought to expand a nonconforming use as was the case in Raffaele.
As previously mentioned, the academy's status was mentioned only once during the public hearing. A review of the record reveals that this is the sole reference to the academy's nonconforming status. The issue of whether Slater sought to expand a nonconforming use was not raised at the agency level and, therefore, because the record is absent of any evidence regarding this issue then it is not properly before this court. See Rafaniello v. Zoning Board of Appeals, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 392951 (January 22, 1992, Walsh, J.) (Issues that were not raised at the agency level were improperly presented to the trial court on appeal.)
Accordingly, it is found that because the commission determined that Slater's application satisfied the requirements as set forth in § 17.2.3, then the commission could have implicitly found that the proposed parking lot was not an illegal expansion of a nonconforming use. A review of the record reveals that there was no evidence submitted into the record demonstrating that Slater was seeking to expand or add to a nonconforming use. Furthermore, a review of the regulations reveals that Slater could properly seek the requested relief because the proposed parking lot is a permitted use pursuant to the zoning regulations referenced above in part II, Section B of this decision. Finally, the issue of whether Slater sought to expand a nonconforming use was not presented to the commission and, therefore, the record is devoid of any evidence addressing whether the commission's decision expanded a nonconforming use. Accordingly, because this issue was not presented to the commission, the court cannot reach the issue here.
VI. CONCLUSION
Accordingly, based on the foregoing reasons, the appeal is dismissed.
Joseph J. Purtill Judge Trial Referee