Opinion
No. HHB CV05 4007973
October 27, 2006
MEMORANDUM OF DECISION
The plaintiffs, Paul C. Meskiewicz and Elio Lagana, (plaintiffs) appeal from a decision of the Wethersfield Planning and Zoning Commission (commission) in which the commission granted an application by the defendant, Premier Building and Development, Inc., (Premier) for a change of zone. On June 28, 2005, Premier filed an application for change of zone from AA Open Space to Special Residential Development for property located on the easterly side of Back Lane and at the end of Old Reservoir Road, known as Tax Assessors Map 43 Block 11 and Map 42 Block 16, located in the town of Wethersfield, Connecticut. (ROR 54.) The zone change would allow for the construction of an over 55, age-restricted housing development. (ROR 66.) The commission opened a public hearing on the application on August 16, 2005 (ROR 66) and continued the public hearing until September 6, 2005, (ROR 68) when it was closed. On September 20, 2005 (ROR 70), the commission voted to approve the application by a vote of five in favor, two opposed, and one abstention. Notice of the commission's approval was published in the Hartford Courant on September 23, 2005. (ROR 2.)
The plaintiffs have appealed from the decision of the commission, claiming that, in granting the change of zone, the commission acted illegally, arbitrarily, and in abuse of the discretion vested in it. The plaintiffs raise four issues in their appeal:
1. The commission's legal notice for the continued hearing to September 6, 2005 was defective.
2. The commission prohibited land owners from signing the protest petition at the public hearing on September 6, 2005.
3. Two Commissioners voted to approve the application who may not have been present throughout the entire proceeding, and the record does not reflect that they had familiarized themselves with the application.
4. The commission failed to consider the impact of its decision to grant the application on the surrounding neighborhood.
The plaintiffs claim to be aggrieved by the decision of the commission. Connecticut General Statutes, Section 8-8(a)(1), defines an aggrieved person as "any person owning land which abuts or is within a radius of 100 feet of any portion of the land involved in any agency decision." The parties have stipulated in court that the plaintiffs are the owners of property which abuts the property that is the subject of this appeal. As a result, the plaintiffs are statutorily aggrieved by the actions of the Wethersfield Planning and Zoning Commission.
Zoning authorities are endowed with a wide and liberal discretion. Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668 (1952). The court is powerless to replace the discretion of the commission with its own. Piccolo v. West Haven, 120 Conn. 449, 452, 181 A. 615 (1935); Blake v. Board of Appeals, 117 Conn. 527, 531, 533, 169 A. 195 (1933). The modification of zone boundaries and regulations by a zoning commission partakes of the nature of legislative proceedings. Low v. Madison, 135 Conn. 1, 8, 60 A.2d 774 (1945); Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 694, 155 A. 850 (1931). The court cannot substitute its judgment, especially in a legislative matter, for the judgment of the commission when the considerations are fairly debatable. State v. Hillman, 110 Conn. 92, 105, 147 A. 294 (1929). Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority. Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A2d 538 (1952). Thus, the court may grant relief on appeal only where the local authority has acted illegally or arbitrarily or has abused its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 469-70, 442 A.2d 65 (1982).
The plaintiffs do not take issue with the public notice given for the initial hearing on August 16, 2005. The plaintiffs contend that the commission's failure to give similar notice as to the continuation of the public hearing invalidated the action of the commission. Connecticut General Statutes, Section 8-7d, provides the notice requirement for the commencement of a public hearing. The court finds that the statute does not apply to a continuation of the hearing and that the notice requirements of Connecticut General Statutes 8-7d have been satisfied. Carlson v. Fire District Committee and Zoning Commission of Watertown, 31 Conn. L. Rptr. 355 (2002) Moraghan, JTR).
Connecticut General Statutes, Section 8-3(b), sets forth a procedure which allows for a protest petition to be filed in opposition to a proposed zone change. If the protest petition is filed at or before a hearing, signed by owners of twenty percent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed zone change, the commission is required to approve the application by a vote of two-thirds of all the members of the commission. In the instant case, a protest petition was filed with the commission on September 6, 2005. (ROR 9 and 68.) It appears from the transcript of the public hearing (ROR 67.) and the minutes of the public hearing (ROR 68) that there was discussion as to whether to allow additional signatures to be added to the filed protest petition. (ROR 67 and 68.) In addition, there was a discussion as to whether the public hearing should remain open until the commission could determine whether the protest petition contained sufficient signatures. (ROR 68.) There was also discussion as to whether the vote should take place prior to a determination about the signatures. (ROR 68.) In any event, the public hearing was closed on September 6, 2005 without allowing additional signatures to be added to the protest petition. (ROR 68.) The commission then tabled the matter until September 20, 2005. (ROR 68.) On September 20, 2005, the commission determined that the protest petition was ineffective for lack of sufficient signatures and approved a motion to that effect. (ROR 70.) After further discussion, the application was approved by the commission.
In this case the protest petition would raise the required vote necessary for approval from five to six.
The plaintiffs claim that the failure of the commission to allow additional eligible residents to sign the protest petition prior to the close of the public hearing frustrated the purpose of the public hearing. Therefore, if additional signatures were allowed, "perhaps" the protest petition would be valid. Unfortunately, there is nothing in the record to support the plaintiffs' claim. Connecticut General Statutes, Section 8-8(k), provides that the court shall review the proceedings of the board and shall allow additional evidence to be introduced if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. In at least two instances, trial courts have allowed additional evidence to be submitted to determine the validity of a protest petition. Ammentorp v. Planning Zoning Commission of the Town of Newtown, CV99-0336329S (Jud. Dist. of Danbury, June 9, 2000) (Radcliffe, J.); Preininger v. Monroe PZC, CV99-377274 S (Jud. Dist. of Fairfield, Dec. 17, 2002) (Thim, J.). There was no request to supplement the record with additional evidence to support the plaintiffs' claim that there were available at the September 6, 2005 public hearing individuals whose signatures on the petition would have satisfied the requirements of section 8-3(b). In another case, the trial court remanded the matter to the town planning and zoning commission for the purpose of determining whether the petition complied with the requirements of section 8-3(b). See, Halpin v. South Windsor Planning Zoning Commission, CV 93 052 55 52S (Jud. Dist. Of Hartford, Jan. 18, 1995) (Mottolese, J.) ( 13 Conn. L. Rptr. 403). None of the parties in the present case have suggested a remand would be appropriate. Based on a review of the record, this court cannot find that the actions of the commission regarding the protest petition were improper.
The plaintiffs do not contest the finding by the commission that the protest petition was insufficient.
The next claim of the plaintiffs, that two commissioners voted improperly, is also not supported by the record. The Connecticut Supreme Court has held that, even where hearings are required by statute, a commission member need not be present in order to participate in decisions "(i)f that member acquaints himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment." Loh v. Town Plan Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971). The plaintiffs have the burden of proof of showing that the two commissioners did not in fact sufficiently acquaint themselves with evidence presented and the issues raised by the applicants. Loh v. Town Plan Zoning Commission, supra, 43; Dana-Robin Corporation v. Common Council, 166 Conn. 207, 215, 348 A2d 560 (1974). The minutes of the September 20, 2005 meeting of the commission are clear. Both Commissioner Knecht and Commissioner Petrelli were prepared to participate in the voting. (ROR 70.) The court takes note of the fact that the transcripts of the previous public hearings have gaps. However, the minutes are exceptionally detailed and provided adequate information as to what transpired at the previous hearings. The minutes of the September 20, 2005 meeting indicate that Mr. Gillespie, the Town Planner, had distributed all the reports and both hard and electronic copies of the minutes to the commissioners. (ROR 70.) The court finds that the plaintiffs have not met their burden of showing that the commissioners voted improperly.
The final issue presented by the plaintiffs is whether the commission failed to consider the impact of its decision to grant the application on the surrounding neighborhood. As previously indicated, when a zoning authority enacts or changes a zoning regulation or zone classification, it acts in a legislative capacity and its action is reviewed to determine if the action is "reasonably supported by the record." Protect Hamden/North Haven From Excessive Pollution and Traffic, Inc. v. Planning and Zoning Commission, 220 Conn. 527, 543-44, 600 A2d 757 (1991). This legislative discretion is "wide and liberal," and must not be disturbed by the courts "unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." Burnham v. Planning Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). "Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 (1962); Clark v. Town Council, 145 Conn. 476, 483, 144 A.2d 327 (1958). The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." Malafronte v. Planning Zoning Board, 155 Conn. 205, 209-10, 230 A.2d 606 (1967). Within these broad parameters, "(t)he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, Connecticut General Statutes Section 8-2, Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 (1962), and (2) it must be reasonably related to the normal police power purposes enumerated in 8-2 . . ." First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). The Court's review of the record leads the Court to conclude that it adequately establishes that the action of the commission was in accordance with the Wethersfield comprehensive plan and was reasonably related to the police powers enumerated in Connecticut General Statutes, Section CT Page 19887 8-2. One of those powers is that the regulations encourage development of housing opportunities for all residents.
Accordingly, plaintiff's appeal is hereby dismissed.
The court acknowledges that the commission did in fact publish conflicting notices of the continued hearing in the Hartford Courant. The notice was not required by any statute or regulation and there is nothing in the record to demonstrate that the conflicting notices caused confusion or prejudice to anyone.