Opinion
No. CV05 4004530 S
August 24, 2006
MEMORANDUM OF DECISION
The plaintiff is limited liability company which owns real property located at 8 Railroad Avenue, Essex, Connecticut. The plaintiff's property is known as "The Witch Hazel Works" as it was the former cite of E.L. Dickinson Company, manufacturer of a liniment sold under the brand name Witch Hazel. The plaintiffs had the Witch Hazel Works property re-zoned by the defendant Essex Zoning Commission ("Commission") in 2000 to re-zone the property as Heritage Gateway (HG) District, HG-1, pursuant to 81D.2 of the Commissions Regulations.
The HG District is a special section of the Zoning Regulations created to provide the Commission with a flexible framework to regulate the properties, such as the plaintiffs; which have unique or unusual characteristics and do not fit into conventional zoning. The Witch Hazel Works cite consists of approximately 8.45 acres or approximately 367,920 square feet and is located entirely within the HG-1 Zoning District.
The only access to the plaintiff's site was through the land of the Valley Railroad Company (the Essex Steam Train), over a shared gravel driveway, and across a railroad grade crossing.
In order to address this access problem, the plaintiffs sought permission to construct a driveway from Main Street (Connecticut Route 154), to its property. The plaintiffs sought this change by a petition dated June 17, 2005 for an amendment of zoning regulations.
The defendant Commission opened a Public Hearing on the plaintiff's application at the Commission's meeting of August 15, 2005. The public hearing was left open and continued to the Commission's meeting date on September 19, 2005, at which time it was closed.
The defendant Commission deliberated on the plaintiff's application at its meeting of October 17, 2005, but did not vote on the petition until November 21, 2005. The commission voted 3 to 2 to deny the petition.
The court finds that the plaintiff as the owner of the property (Plaintiff's Exhibit 1) is aggrieved by the commission's November 21, 2005 decision denying its petition for zone change.
Plaintiff argues that though its petition was for a zoning change as required by the HG Zoning Regulations; the essential change of the "Concept Plan" is synonymous and interchangeable with the term "site plan" as used in Connecticut General Statutes § 8-3(g). That section provides § 8-3(g): "A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations."
The plaintiff argues and the record demonstrates that the plaintiff's plan complied with the regulations set forth in both the zoning regulations and wetlands regulations.
The defendant argues that the petition for amendment to the zoning regulations was in fact an amendment to the zoning regulations which the commission has a great deal of discretion over. Kaufman v. Zoning Commission, 232 Conn. 122 (1995); Protect Hamden/North Haven v. Planning Zoning Commission, 220 Conn. 527, 543 (1991); Malafronte v. Planning Zoning Board, 155 Conn. 205, 209 (1967).
Thus the critical issue in this appeal is whether the plaintiff was seeking a site plan review which should of been granted as it was in conformance with regulations; or was an amendment to the zoning regulations, which was within the discretion of the commission to deny.
A site plan "is a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use." SSM Associates Limited Partnership v. Planning Zoning Commission, 15 Conn.App. 561, 566 aff'd 211 Conn. 331 (1988).
The plaintiff's argument is similar to the unsuccessful argument of the developer in Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607 (1992). In Barberino the developer was appealing from the denial of its application for approval of a revised cite plan and for approval of a subdivision. In that case the plaintiff had received a special permit for an elderly housing project. In obtaining the special permit he obtained cite plan approval. Subsequently, he sought to revise the cite plan without complying with the special permit regulations. The court in discussing the commission's role in reviewing the cite plan alteration noted "Accordingly, before 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. The commission, therefore, must be allowed to examine the suggested proposal closely." 222 Conn. at 613.
In the instant case the commission was not dealing with a special permit, but rather pursuant to its regulations and amendment to the HG-1 Zoning Regulation. There is no provision in the Essex Zoning Regulations for cite plans except as they are required as part of the supporting information as submitted in connection with the special exception. [Record Item 25, pages 132-35.]
The Essex Zoning Commissions decision is supported by some evidence of traffic concerns relating to other facilities on Main Street in the general location of the proposed ingress and egress to plaintiff's property. The weight of the evidence would seem to support the plaintiff's proposal, but in weighing the discretionary action of the defendant Commission the test is not the weight of the evidence. Protect Hamden/North Haven v. Planning Zoning Commission, supra 220 Conn. at 543.
The plaintiff also argues that the defendant violated its procedural and substantive due process rights by relying on material outside the record that substantially prejudiced the vote of the commission.
In support of this contention, the plaintiffs cite the transcript of the zoning commission meeting of November 21, 2005, at which time they denied plaintiff's petition. The Transcript pp. 2, 3 [Record Item 24], indicate that one commission member attempted to bring up matters which may have been outside the record. At least two members of the commission and their attorney cut him off and correctly limited the commission's consideration to the record presented at the public hearings.
The plaintiff has failed to overcome the presumption of regulatory in the proceedings of the commission. See Murach v. Planning Zoning Commission, 196 Conn. 192 (1985); Foran v. Zoning Board of Appeals, 158 Conn. 331 (1969).
The commission in exercising its discretion denied the amendment to its zoning regulations based on issues of traffic flow and safety which were raised at the public hearing. The basis for the decision is stated in the motion to deny the petition. [Return of Record #24 Transcript p. 20].
The plaintiff's appeal is dismissed.