Opinion
No. CV04-4000496
September 29, 2006
MEMORANDUM OF DECISION
FACTS
On March 15, 2004, the Plaintiff, Ronald E. Levesque, filed an application with the Killingly Planning and Zoning Commission for a special permit to construct ninety-eight units of elderly housing on a 15-acre parcel which was a portion of a 23.7-acre tract. The property was located at 1009 Upper Maple Street in Killingly. The complex was to be located in a neighborhood of single-family and duplex dwellings on individual lots.
The commission held hearings on the matter on March 15, 2004, April 19, 2004, June 21, 2004, and completed and closed the hearing on July 19, 2004. On August 16, 2004, the special permit application was denied by a unanimous vote of 4 to 0.
ISSUES
In his brief, the Plaintiff raises three issues. Those issues are:
A. A conflict of interest by the chairman who participated in the proceedings.
B. Failure to follow Roberts Rules of Order.
C. Action that was arbitrary, illegal and in abuse of its discretion in that there was no foundation for the denial.
DISCUSSION
At the hearing on the matter held before this court, the Plaintiff effectively abandoned his argument that the failure to follow Roberts Rules of Order was itself a defect. The Plaintiff argued only that the chairman's decision not to follow the rules was evidence of her conflict of interest. There was no evidence in the record or at the hearing that the commission regularly followed Roberts Rules of Order or was for any reason required to follow the Rules. Consequently, the court finds no significance to the failure to follow the Rules.
The applicant did not testify at the hearing and no documentary evidence of the applicant's ownership was submitted. The applicant did subpoena the chairman of the zoning commission who testified that the applicant owned the property in question and had applied for the special permit. Based upon the testimony of the chairman, the court finds aggrievement.
In accordance with Connecticut General Statutes § 8-3c, the commission stated reasons on its record for denial of the plaintiff's application. The reasons given were as follows: (1) "lack of harmony to the surrounding area," (2) not "accepted generally in the neighborhood," (3) the "three story facility" was "inconsistent with the neighborhood" because the "height requirement [was] not met." Transcript, 8/16/04, p. 9.
In its brief dated February 1, 2006, the town concedes "reasonable people could differ as to whether or not the building's height met the 35-foot limitation, . . ." (Defendant's Brief, p. 8.) In view of this concession, the court will not address the height as a reason supporting the denial of the special permit.
"When a zoning authority has stated the reasons for its actions, a reviewing in court may determine only if the reasons given are supported by the record and are pertinent to the decision." Quality Sand and Gravel, Inc. v. Planning and Zoning Commission of the City of Torrington, 55 Conn.App. 533, 537 (1999). The authority's action "must be sustained if even one of the stated reasons is sufficient to support it." Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984). A court may not substitute its judgment for the zoning authority as long as "honest judgment has been reasonably and fairly exercised . . . Id., 49.
In Connecticut Health Facilities, Inc. v. Zoning Board of Appeals of the City of Stamford, 29 Conn.App. 1 (1992), the Appellate Court affirmed the denial of a special permit when "(1) the location, size and scale of the proposed structure would be more objectionable to nearby properties than the public necessity demands, and (2) the nature and intensity of the proposed use in relation to its site and surrounding area would produce more potential disturbances to the health, safety or peaceful enjoyment of property than the public necessity demands." Id., 4.
In the case before the court, the Plaintiff does not appear seriously to contest that "lack of harmony to the surrounding area" nor "[acceptance] generally in the neighborhood" were valid reasons for denial. The Plaintiff does contest whether there was sufficient evidence to support either reason given.
There was evidence that the project was found not to blend with the surrounding neighborhood because the surrounding neighborhood is made up of single-family homes. Transcript, 7/19/04, p. 2-3. The future land use map, which appears to constitute the comprehensive plan of the town, shows the area in question as single-family homes and not an area for multi-family residential development. Transcript, 7/19/04, p. 3. A petition signed by 100 residents objecting to the proposed development shows that residents perceive a lack of compatibility with the neighborhood. Transcript 6/21/04, p. 30, 32. The court finds that the agency's decision is supported by valid reasons and that those reasons are adequately supported by evidence contained in the record.
The predominant issue between the parties is the claim by the Plaintiff that the chairperson of the Killingly Planning and Zoning Commission had a conflict of interest in considering and acting on the Plaintiff's application.
Section 8-11 of the Connecticut General Statutes provides in pertinent part
No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.
At the hearing before this court, the chairman testified that she lived approximately one-half mile from the site. In the transcript of the meeting of July 19th, the chairman is quoted as follows: "I just have a question. How do you propose to handle the water at the entrance of this development[?] I live near there and I go by there all of the time and that place is flooded all the time." Transcript, 7/19/04, p. 13.
While the chairperson is frequently quoted at various places throughout the transcript, most of those quotes are merely procedural matters in which the chairperson is controlling the flow of the meetings. The court sees nothing in any of those procedural quotes, all of which have been carefully reviewed, that indicates a conflict of interest.
Two quotes by the chairman deal with her personal beliefs and may be relevant to the question of conflict of interest. In the first quote, the chairman states: "Alright. Any other questions by the Commission members or Staff that you would like to have answered before we close this hearing. And I just want to say that I will reiterate what has already been said. I think that both sides did a lot of work on this application. And you can be assured that the Commission will give it the proper attention that it deserves. It is not an easy decision but we will do the very best we can to weigh all of the evidence that was presented this evening. Yes, Linda." Transcript, 7/19/04, p. 43.
In a second and lengthy quote, the chairperson expresses her views on the project shortly before the vote. The chairperson states: "I am going to jump in here. First of all I would like to mention that it seems like everything that is being done here is the minimum, minimum, minimal, minimum. The standards are the minimum setbacks. Parking is a minimum of three-quarters of a space. The thickness of the buffer is minimal. The reduction of lot coverage would affect the design storm water management. So fewer units would help that situation. There is a minimal earth grading. And I have some other comments as well. Under Section A, Elderly Housing. We discussed the maximum height requirements and it is up to the Commissioners to decide whether or not the air condition and extensions that are extending from the roof should be included in or should be added to or can be added to the thirty-five minimum of height. I would like the Commission to consider how this proposed development is coordinated in terms of architecture. Most of the surrounding homes in the neighborhood are single-family homes. Under Section, Site Plan Review Requirements, neighborhood impact is very important. We received a hundred signature petition against this development. We did not receive any for, that I know of and I asked about that today. Aesthetically, the main buildings or the main building is a three-story building. And we have been told that it wouldn't show anyway. It is still a three-story building, it is not like anything in the area. Those buildings that were compared to some of the buildings that were in this development are State buildings under which this town has no control. Maple Courts does have three stories on one side but that goes under the ground level because the land dips in the back. The other consideration is, is this development in generally in harmony with the surrounding properties. If you look at the drawings and the design, [p]ersonally, and commission members can disagree with me as much as you like, I don't believe that enough attention has been given to design elements to blend in with what already exists here. Under Special Permit again we have the same issue the nature of the surroundings and the extent to which it will be in harmony or serve as a transition. Again, I do not believe that this development fits in with what's already here. It doesn't have neighborhood acceptance. It may satisfy some of the other requirements. I think that some of the units are too close to the road, even though they satisfy the minimal requirements. And that is my personal opinion. However the Commission is going to vote on this and you people can disagree with me if you like. But I want to say my piece and that is what it is. I would like to hear from some of the other Commission members." Transcript, 8/16/04, p. 2-3.
Comments of other commission members were generally negative. Following the discussion by the commission members, a motion to deny the application was passed unanimously.
The only appellate level of authority in Connecticut dealing with disqualification based upon a member's proximity to a proposed project appears to be Anderson v. Zoning Commission, 157 Conn. 285 (1968). In Anderson, the commission chairman disqualified himself from participating in the commission's deliberations because he lived about one-half mile from the property in question and because some of his friends would oppose the application while others would support it. Although the chairman disqualified himself, the trial court concluded that he had no direct or indirect interest of either a personal or financial nature in the project. Shortly before the hearing, another commission member informed the commission that he could not attend the hearing. The chairman, although he had already disqualified himself, suggested the name of an alternate who was seated. The proposed development was defeated by a unanimous vote. In Anderson, the Supreme Court held, "[a] personal interest is either an interest in the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority. A personal interest can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess. Local governments would, however, be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. If this were so, it would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism. They must, however, also be mindful that to abrogate a municipal action on the basis that some remote and nebulous interest may be present would be to deprive unjustifiably a municipality, in many important instances, of the services of its duly-elected or appointed officials . . . The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case." (Citations omitted.) Id., 290-91.
It is not clear from the record in this case whether the Plaintiff knew prior to the first hearing that the chairperson lived close to the site in question. It is clear that during the course of the various hearings, the chairperson disclosed that she lived close to the property. It is also clear that at no time during the course of the various hearings did the Plaintiff challenge the chairperson's impartiality. Because it is not clear that the Plaintiff knew of the alleged conflict in a timely manner, the court will not address the issue of failure to raise the conflict.
After reviewing each comment made by the chairperson throughout the four meetings, the court finds that the chairperson did not have an impermissible conflict of interest. The only evidence of conflict is the proximity of the chairperson's residence to the site in question. The residence was separated from the site by approximately one-half mile. A review of each comment by the chairperson throughout the four hearings indicate that she ably and fairly presided over the hearings. She indicated that each side had presented a lot of information and that the commission would consider it carefully. She was probably the most vocal in setting forth her reasons for disapproving of the application. However, her reasons were essentially consistent with comments by other members and none of them appear to be inconsistent with evidence presented. Although the Supreme Court in Anderson did not address a potential conflict by the chairman because he had disqualified himself, the trial court found that that one-half mile separation between the site and the project did not constitute a conflict of interest. This court agrees with the conclusion of the trial court in Anderson. Mere proximity between a member's residence and the site of a project without some additional evidence of conflict or bias, at least when that distance is as great as a one-half mile, is not sufficient to find a conflict of interest or to reverse the decision of the local agency.
The appeal is dismissed.