Opinion
No. CV98 0353584
April 20, 2007
MEMORANDUM OF DECISION
This matter is an appeal from the decision of the named defendant Planning Zoning Commission of the City of Bridgeport (Commission), denying the applications of the named plaintiffs for a special permit, a site plan review and a coastal site plan review in connection with a proposed batch asphalt plant to be operated on certain real property located in the city of Bridgeport, brought to the Superior Court in the judicial district of Fairfield, where J.R.R.C. Associates was substituted for Anthony D. Julian, trustee, as a plaintiff. The matter was thereafter, originally tried to the court (Stodolink, J.T.R.) who rendered judgment dismissing the plaintiffs' appeal, from which the plaintiffs appealed.
The matter now returns to the Superior Court following a remand from the Connecticut Supreme Court, which rendered its decision in Moutinho v. Planning Zoning Commission, 278 Conn. 660, 899 A.2d 26 (2006). In its decision the Supreme Court held that the original trial court (Stodolink, J.T.R.) improperly determined that Mountinho was not aggrieved by the PZ's denial of his applications. Id., 669-70. The Supreme Court additionally held that J.R.R.C. Associates, as the owner of the property in question, was aggrieved pursuant to General Statutes § 8-8(a) that governs appeals from zoning authority decisions, and that the original trial court improperly refused to consider the merits of J.R.R.C.'s appeal. The plain language of § 8-8(b) clearly provides that any person statutorily aggrieved may take an appeal, and there was no merit to the PZ's claim that J.R.C.C. must be an applicant or a partner in the proposed project in order to be aggrieved by the PZ's denial of Moutinho's applications. Id., 671.
Sec. 8-8(a)(1)(2) reads as follows:
(a) As used in this section:
(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the 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 one hundred feet of any portion of the land involved in the decision of the board.
(2) "Board" means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or such official's designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.
Sec. 8-8(b) reads as follows:
(b) Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, 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 time as prescribed for civil actions brought to that court.
I Aggrievement
Pursuant to the remand order, the court held further proceedings for re-argument of the merits of the appeal and a finding of aggrievement. "[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003).
Pursuant to the decision and remand order in Moutinho v. Planning Zoning Commission, supra, 278 Conn. 669-71, the court finds that Moutinho and J.R.C.C. are aggrieved parties for the purposes of this appeal from the denial by the defendant PZ of certain applications filed by the plaintiffs.
II Procedural Summary
The record reveals the following undisputed factual and procedural background. In 1998, Moutinho applied to the PZ for a special permit, site plan review, and coastal site plan review to construct a batch asphalt plant at 53-85 Seaview Avenue in Bridgeport. The applications identified Moutinho as a lessee of the property. When the applications were filed, the record owner of the property was a trust established for the benefit of four brothers; Anthony D. Julian, Raymond Julian, Dominick Julian, and Donald Julian; with Anthony Julian serving as trustee. Although the Julian brothers were not listed as applicants on the form Moutinho submitted to the PZ, Raymond Julian had consented to the application by signing it on behalf of the trust. At the public hearing pertaining to the application, Moutinho's attorney also disclosed the brothers' names pursuant to General Statutes § 8-7c to ensure that the commission did not have a conflict of interest with the beneficial owners of the property. The commission ultimately denied all three of Moutinho's applications, and Moutinho and Anthony Julian, as trustee, timely appealed from the commission's decision to the Superior Court. See Nine State Street v. Planning Zoning Commission, 270 Conn. 4250-52, 850 A.2d 1032 (2004). After the appeal was filed, the property was conveyed by the trust to J.R.R.C., a general partnership whose sole partners were Dominick Julian, Raymond Julian, and Anthony Julian. Thereafter, the trial court granted a motion to substitute J.R.R.C. as a plaintiff in place of Anthony Julian as trustee. The court is proceeding on the Second Amended Appeal dated April 25, 2003, consisting of four counts and the PZ's Answer to the Second Amended Appeal dated May 27, 2003.
Sec. 8-7c. Disclosure of beneficiaries of real property held in trust reads as follows:
Any person who makes an application to a planning commission, zoning commission or zoning board of appeals pertaining to real property, the record title to which is held by a trustee of an undisclosed trust, shall file with said application a sworn statement disclosing the name of the equitable owner of such real property or the beneficiary of the trust.
III Second Amended Appeal
The Second Amended Appeal consists of four counts. The first count is directed to the denial of the plaintiff Moutinho's application for a Site Plan Review filed under § 14-2 of the Bridgeport Zoning Regulations (Regulations). The second count is directed to the denial of the Special Permit filed by Moutinho pursuant to § 14-4 of the Regulations. The third count is directed to the denial of the Coastal Site Plan Review filed by Moutinho pursuant to § 14-3 of the Regulations. The fourth count is directed toward an intervention pleading filed pursuant to General Statutes § 22a-19.
Section 14-2 Site Plan Review reads in relevant parts as follows:
14-2-1 Purpose: The purpose of this section is to ensure that designated categories of development are comprehensively reviewed for compliance with the requirements of these Regulations and for adequate provision of vehicular and pedestrian circulation, parking, landscaping, buffers, signage, drainage, utilities and other needs produced by the proposed development. It is also intended that through the procedures established under this Section, development impacts will be evaluated by the Planning and Zoning Commission in light of the City's needs to protect its natural, social and cultural environment in accordance with the Master Plan, and that adverse development impacts will be minimized.
14-2-2 Site Plan Review Required: Site Plan review is required for the use and/or development of any parcel granted a variance, Special Permit uses . . . and for any other uses as may be expressly provided by these Regulations . . .
h. Impact Analysis: An impact analysis of the development upon storm drainage, sanitary sewerage, traffic, site conditions and/or environmental resources, including environmental impacts to coastal resources and the ecosystems and habitats of Long Island Sound.
14-2-5 Site Plan Review Standards: In reviewing site plan applications, the planning and Zoning Commission shall take into consideration the purposes of these Regulations, including the purposes of the Base Zone, any applicable Overlay Zones, development standards, or other applicable regulations or standards, as well as, the goals and policies of the Master Plan; health, safety, general welfare and convenience of the public in general and of the residents of the neighborhood in particular; any environmental impacts the proposed development would have on Long Island Sound; and the maintenance of property values. In its review, the Planning and Zoning Commission may require a modification or attach reasonable conditions and safeguards as a precondition to approval of a site plan . . .
b. Vehicular access, circulation and parking: The plan shall include safe, adequate and convenient facilities for pedestrian circulation and circulation, operation and parking and loading of vehicular traffic.
c. Circulation and parking: Adequate off-street parking and loading spaces shall be provided.
1. The applicant must demonstrate the area streets and traffic controls have adequate capacity to service the site without causing undue congestion or hazardous conditions, or must submit a plan to improve such streets and traffic controls so that the project will not cause undue congestion or hazardous conditions.
e. Environmental and other impacts: The site plan shall demonstrate protection of environmental quality and minimization of impact on surrounding properties. The Planning and Zoning Commission shall take into consideration the following features and standards:
3. Impact on nearby properties: Lighting and noise, odors, particles and other disturbances shall be controlled to avoid interference with the use and enjoyment of nearby properties . . .
Section 14-4 sets forth the procedures to be followed for Special Permits.
Section 14-3 Coastal Site Plan Review and Approval reads in relevant parts as follows:
1. Purpose: Coastal Site Plan Review and Approval under this section is intended to fulfill the requirements of Sections 22a-105 through 22a-109 of the Connecticut General Statutes; to ensure that activities contemplated in the Coastal Boundary will satisfy all lawful requirements; and to ensure that within the Coastal Boundary the potential adverse impacts of proposed activities on both coastal resources and future Water-Dependent developmental activities are acceptable.
g. The reviewing body may approve, modify condition or deny a Coastal Site Plan based on the criteria found or referenced in Sections 14.2 and 14.3 of these Regulations. The reviewing body must issue its findings and reasons for actions in writing, and shall publish notices of approvals or denials pursuant to the requirements of Section 22a-109(f) of the General Statutes.
5. Criteria for Review: In reviewing applications for Coastal Site Plan Approval, the reviewing body shall employ the criteria of Section 22a-106 of the General Statutes; and the criteria of Subsections a., b., c., d., and e. of this Section. In approving any activity proposed in a Coastal Site Plan application, the reviewing body shall make a written finding that the proposed activity with any conditions or modifications imposed meets the criteria of subsection 22a-106(d) of the General Statutes as well as the following criteria:
a. environmental impacts to coastal resources and the ecosystems and habitats of Long Island Sound are suitably mitigated using best available technology;
b. the siting of structures and uses serves to protect and harmonize with significant waterfront resources and characteristics of the site;
c. the direct loss of significant natural resources of scenic values of the harbor area is mitigated;
d. public views to and along the water are maintained and enhanced wherever possible through careful design and siting of structures; and
e. except where public safety would be at risk or where public access would unreasonably conflict with a Water-Dependent Use or the preservation or enhancement of significant waterfront resources, public access is promoted and appropriate amenities are provided.
The appeal sets forth that the subject property, 53-85 Seaview Avenue, Bridgeport, Connecticut is situated in a heavy industrial zoning district and is located on the shore of Johnson's creek. Due to the proximity to Johnson's Creek, the property is situated in a coastal area, as defined by General Statutes § 22a-94 and Sec. 14-3 of the Zoning Regulations.
General Statutes § 22a-94(a) reads as follows:
(a) The Connecticut coastal area shall include the land and water within the area delineated by the following: The westerly, southerly and easterly limits of the state's jurisdiction in Long Island Sound; the towns of Greenwich, Stamford, Darien, Norwalk, Westport, Fairfield, Bridgeport, Stratford, Shelton, Milford, Orange, West Haven, New Haven, Hamden, North Haven, East Haven, Branford, Guilford, Madison, Clinton, Westbrook, Deep River, Chester, Essex, Old Saybrook, Lyme, Old Lyme, East Lyme, Waterford, New London, Montville, Norwich, Preston, Ledyard, Groton and Stonington.
On or about February 9, 1998, Moutinho applied to the PZ for permission to erect a batch asphalt plant on the property, a use permitted by in a I-HI zone. Specifically, Moutinho applied for a Site Plan Review, a Special Permit and a Coastal Site Plan Review. Thereafter, the PZ denied the Moutinho's application following a hearing which was commenced on April 7, 1998 and was continued thereafter, to May 5, 1998 and into the early morning hours of May 6, 1998. Notice of said decision was published in the Connecticut Post on May 10, 1998.
The Site Plan Review was denied because:
a. The proposed project would result in a detrimental effect on the public health, safety and welfare.
b. the project location was not conducive to the proposed use due to its proximity to a yacht club and residential uses in the immediate area and the gateway to Pleasure Beach.
c. the additional trucking activity would add to the existing traffic congestion in the area.
d. the streets in the general area are not adequate to accommodate the anticipated increase in truck traffic.
The plaintiffs in their First Count, claim that in denying the application for a Site Plan Review, the PZ acted illegally, arbitrarily and in abuse of discretion in that:
a. there was a failure to approve the application even though it conformed to the Regulations.
b the PZ considered information outside the record and the public hearing.
c. the members of the PZ were improperly influenced by being threatened and harassed.
d. there was a failure to assign a proper reason for the denial.
e. the PZ improperly interpreted the Regulations with respect to the application.
f. it approved a similar application for another location which abutted a residential district.
g. the plaintiffs were deprived of their rights without due process of law.
h. the decision ignored and was contrary to the weight of the evidence.
I. The PZ was improperly pressured into denying the application by municipal officials who were acting improperly, illegally and outside the scope of their authority.
The plaintiffs' application for a Special Permit was denied on the basis that:
a. the proposed project did not comply with the Master Plan of the City of Bridgeport.
b. the project would impair future development of the surrounding area.
c. there was no need for the use in the proposed location and the use for solely for financial gain.
d. the height and bulk of the proposed facility would obscure the coastal waterway and gateway to Pleasure Beach.
e. the project did not contain sufficient safeguards to protect the waterfront.
f. the project would have an negative impact on Long Island Sound.
The plaintiffs claim that in denying the Special Permit, the PZ also acted illegally, arbitrarily and in an abuse of discretion for reasons almost identical to those set forth regarding the denial of the Site Plan Review.
The application for a Coastal Site Plan Review was also denied. The PZ set forth the following, as the reasons for said denial:
a. The project, as submitted, was not a water-dependent activity and did not require a waterfront location.
b. The development of the site would impair the views and vista of Long Island Sound and the harbor area.
c. A negative environmental and ecological impact would result from storm water run-off into th harbor and Long Island Sound.
d. Emissions from both the proposed asphalt plant and associated trucking activity would adversely impact the general area.
As for the denial of the Coastal Site Plan Review, the plaintiffs in Count Three, once again claim that the PZ acted illegally, arbitrarily and in an abuse of discretion for reasons similar to those stated by the plaintiffs regarding the denials of both the Site Plan Review and the Special Permit.
Count Four of the Second Amended Appeal concerned an intervention pleading pursuant to General Statutes § 22a-19 which was presented to the PZ. The PZ found that there were environmental concerns regarding the proposed asphalt plant. The plaintiffs again claim that the PZ acted illegally, arbitrarily and in an abuse of discretion in the following ways:
General Statutes § 22a-19 reads as follows:
(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.
a. There was a failure to assign a proper reasons for the denial;
b. There was an improper interpretation of the Regulations;
c. The plaintiffs were deprived of their property rights without due process of law;
d. The decision of the PZ ignored and is contrary to the weight of the evidence in the record.
The plaintiffs have asked the court to sustain their appeal and overturn the denial of the PZ as to the Site Plan Review, Special Permit and the Coastal Site Plan Review and to order their approval. The plaintiffs additionally request that the court overturn the PZ's decision regarding environmental concerns contained in the intervening pleading.
IV Standard of Review Re: Zoning Appeals, Site Plan, Special Permit, Coastal Site Pan
The standard of review of a zoning commission or board is firmly established. "Courts are not to substitute their judgment for that of the board and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . ." Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972). (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).
"In reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotations omitted; citations omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993), cert. denied, 114 S.Ct. 1190 (1993). "The burden of proof is on the plaintiff to demonstrate that the Commission acted improperly." Spero v. Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
Furthermore, in cases such as the present one, where the zoning authority has set forth reasons for its decision this court "may only determine if the reasons given are supported by the record and are pertinent to the decision, and the authority's action must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 111, cert. denied, 239 Conn. 949 (1996).
"When the court reviews decisions of land use agencies it cannot substitute its discretion for the evidentiary findings of the agency if they are reasonably supported by the record." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 33.9, p. 584. "It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence." Persico v. Maher, 191 Conn. 384, 408-09, 465 A.2d 308 (1983). "Substantial and competent evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights, 176 Conn. 533, 538, 409 A.2d 1013 (1979). "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 . . ." Samperi v. Inland Wetlands Agency, 226 Conn. at 587-88. "Furthermore, the members of the board are entitled to take into consideration whatever knowledge they acquire by personal observation." Burnhan v. Planning Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983); Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 522, 162 A.2d 711 (1960).
"A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance." (Citation omitted; internal quotation marks omitted.) Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 350, 822 A.2d 374 (2003); Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 571, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). "The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms." Coppola v. Zoning Board of Appeals, 23 Conn.App. 636, 641, 583 A.2d 650 (1990).
A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use. The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations . . ." (Citations omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, supra, 46 Conn.App. 570. "In reviewing and approving site plans the commission acts in an administrative capacity . . ." Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12, 544 A.2d 152 (1988); see also Carr v. Bridgewater, 224 Conn. 44, 54, 616 A.2d 257 (1992); Konover Development Corporation v. Planning and Zoning Commission of the Town of Watertown, No. CV97-0138403S, Superior Court, Judicial District Of Waterbury (August 18, 1999, West, J.).
"The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated . . ." T. Tondro, supra, p. 175; see also Barberino Realty Development Corp. v. Planning Zoning, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992)." Smith-Groh, Inc. v. Greenwich, 78 Conn.App. 216, 229, 826 A.2d 249 (2003).
Whether a zoning board grants a special exception, also known as a special permit, essentially is a discretionary process. Irwin v. Planning Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). "The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn.App. 155, 160, 810 A.2d 312 (2002), quoting Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 519, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). "A special permit enables a property owner to utilize the property in a manner expressly allowed by the local zoning regulations, subject, of course, to satisfying the standards set forth in the regulations." Id.; see also, Connecticut Resources Recovery Authority v. Planning Zoning Commission, supra, 46 Conn.App. 569. Moreover, "considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may [also] be the basis for the denial of a special permit." Irwin v. Planning Zoning Commission, supra, 627.
"When ruling upon an application for a special [exception], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission 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. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Id., 627-28. 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 and statutes. Id., 628.
"Where the board states its reasons on the record we look no further . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons . . . We, in turn, must determine whether the court properly concluded that the board's decision to [deny the application for a special permit] was arbitrary, illegal or an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Municipal Funding LLC v. Zoning Board of Appeals, supra, 74 Conn.App. 161-62; Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 567-68, 785 A.2d 601 (2001). "The evidence, however, to support any such [decision] must be substantial . . ." (Internal quotation marks omitted.) Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 540, 738 A.2d 1157 (1999); see also 1 B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988) § 61f.
The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. "The act authorizes local zoning commissions to undertake a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 359, 832 A.2d 611 (2003). Dean v. Zoning Commission of the City of Norwalk, 96 Conn.App. 561, 562, 901 A.2d 681 (2006).
General Statutes § 22a-106 describes the criteria and process for action on coastal site plans. Specifically, it provides in relevant part: "(a) In addition to determining that the activity proposed in a coastal site plan satisfies other lawful criteria and conditions, a municipal board or commission reviewing a coastal site plan shall determine whether or not the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable.
(b) In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both coastal resources and future water-dependent development opportunities a municipal board or commission shall: (1) Consider the characteristics of the site, including the location and condition of any of the coastal resources defined in section 22a-93; (2) consider the potential effects, both beneficial and adverse, of the proposed activity on coastal resources and future water-dependent development opportunities; and (3) follow all applicable goals and policies stated in section 22a-92 and identify conflicts between the proposed activity and any goal or policy.
(c) Any persons submitting a coastal site plan as defined in subsection (b) of section 22a-105 shall demonstrate that the adverse impacts of the proposed activity are acceptable and shall demonstrate that such activity is consistent with the goals and policies in section 22a-92 . . ."
See Dean v. Zoning Commission of the City of Norwalk, supra, 96 Conn.App. 571 n. 5.
The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. "With respect to review of a coastal site plan, [p]roceedings before planning and zoning commissions are classified as administrative . . . The court's function was to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision because it is within the province of the commission to determine the credibility of witnesses . . . Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission's reasons . . . The question is not whether the trial court would have reached the same conclusion but, whether the record before the [commission] supports the decision reached." (Citations omitted; internal quotation marks omitted.) Pinchbeck v. Planning And Zoning Commission, 69 Conn.App. 796, 799, 796 A.2d 1208 (2002).
"The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." (Internal quotation marks omitted.) Id. at. 799-800 quoting, DeBeradinis v. Zoning Commission, 228 Conn. 187, 195-96, 635 A.2d 1220 (1994).
V Site Plan
As part of the application process Moutinho was required to satisfy the standards for a site plan, which are set forth in Section 14-2-5 of the zoning regulations. The plaintiffs argue that the Commission in denying the site plan acted illegally, arbitrarily and/or in abuse of discretion in that:
See note 4 of this decision.
1. Because an asphalt plant is a permitted use in a HI zone, there is a conclusive presumption that the use does not have an adverse impact.
"The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district. Beit Havurah v. Zoning Board of Appeals, [ supra, 177 Conn. 443]. TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990). Such a conclusive presumption does not, however, dictate that the commission must, in every case, grant a special use application. The town's regulations with regard to special exceptions provide that the commission consider the effect a special exception will have on a neighborhood when exercising its discretion in considering an application for a special exception." (Internal quotation marks omitted.) Bethlehem Christian Fe. v. Planning Zoning, 73 Conn.App. 442, 462-63, 807 A.2d 1089 (2002).
2. The Commission's finding that the proposal would be detrimental to the public health and safety was not supported by substantial evidence.
3. The plaintiffs provided evidence that health concerns were misplaced.
4. The Commission's decision that the proposed use was not conducive to the location must be overturned because an asphalt plant is a permitted use.
5. The denial of the application based upon traffic issues and that the streets were not adequate to support the anticipated truck traffic was illegal, arbitrary and an abuse of discretion because an asphalt plant is a permitted use.
6. If a use is permitted within a zone, a conclusive presumption arises that such a use does not adversely affect the traffic within the zone.
7. The Commission approved the site plan of another asphalt plant in Bridgeport abutting a large residentially zoned community, which was pending before the Commission the same time as the Plaintiffs' site plan.
In its memorandum of decision Nine State Street v. Bridgeport PZC, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 98-035 35 06 S (Jan. 7, 2005, Dewey, J.) the reviewing court noted that the Commission had approved the site plan and had denied the special permit and the coastal site plan application. Acting on the plaintiffs' appeal, the court reviewed the evidence and the record and found that "[a]lthough the project may have complied with the site plan, there was substantial evidence in the record to support each of the Commission's findings. Accordingly, the commission was justified in denying the plaintiff's applications." Id. The court then dismissed the plaintiffs' appeal. Id.
This court cannot review the decision of the commission regarding the site plan approval in Nine State Street v. Bridgeport PZC, supra, or the facts and the record the commission had before it in reaching its decision to deny the special permit and the coastal site plan. The court conducts it review only on the record and evidence it has before it in the subject appeal.
During the hearing, the plaintiffs presented evidence regarding emissions from a modern batch asphalt plant alleging that the emissions would be insignificant and minute and complied with Connecticut Department of Environmental Protection and Environmental Protection Agency Regulations. They also produced evidence that the proposed use was less intrusive than other uses that might be placed on the property, and that the design of the facility would not lead to a harmful impact on the locale. Evidence was also presented that studies provided to OSHA do not list asphalt emissions as a carcinogen.
The Commission also heard evidence that the use would be detrimental to the public health and safety. Evidence was presented that the proposed plant would be located at the entrance of Pleasure Beach and in close proximity to residences and a yacht club. The commission determined that the applicant was unable to demonstrate the adequate capacity for the anticipated traffic that would be generated by the plant. The plaintiffs presented no traffic study and could not present an accurate estimate for the number of trucks that would be entering and exiting the proposed plant. The plaintiffs could not address where the trucks would queue up and the times this would occur. Additionally, the Commission heard evidence from the residents in the immediate area and a representative of the yacht club regarding their concerns as to traffic.
As a result, the Commission found that concerns over traffic congestion and truck idling combined with a lack of a traffic study and other reports led them to conclude that the plaintiffs had failed to satisfy their obligation to "demonstrate that area streets and traffic controls have an adequate capacity to service the site without causing undue congestion or hazardous conditions." See Bridgeport Zoning Regulations § 14-2-5(c)(1).
See note 4.
Additionally, the Commission also found that the "plant would allegedly be detrimental to public health and safety." The Commission in reaching this conclusion considered the plaintiffs' evidence along with evidence produced by the opponents to the plant. There was significant disagreement as to the possible environmental and health issues to the abutting property owners and those within a reasonable radius. This evidence provided the Commission with an ample basis for reaching its conclusion to deny the site plan.
See R.O.R. — Exhibits rr, uu, vv, ww, yy, aaa, ggg, hhh, iii, lll, mmm, nnn, ooo, ppp, qqq, rrr, sss, ttt, uuu, vvv, yyy, aaaa, bbbb, cccc, dddd, eeee, and ffff.
The Commission had evidence from Dr. Nat Carney, Rosalyn Hamilton, City of Bridgeport Health Director, Pamela Hoffman, M.D., President of the Greater Bridgeport Medical Association, and Frank Scarpa, M.D., President of the Fairfield County Medical Association regarding detrimental health effects of this project.
CT Page 6158
VI Special Permit
In challenging the Commission's denial of the special permit, the plaintiffs argue that their proposal complied with the Master Plan, which is a plan of development as defined in Connecticut General Statutes § 8-23, which describes such a plan as indicating a "commission's recommendation for the most desirable use of land within the municipality . . ." Such a plan is merely advisory. First Hartford Realty Corp. v. Plan and Zoning Commission of Bloomfield, 165 Conn. 533, 542 (1973). Additionally, the plaintiffs argue that an asphalt plant is allowed in a HI zone and that it also was consistent with the Harbor Management Plan of the City Harbor Master and the Harbor's Plan of Development by the Bridgeport Port Authority.The plaintiffs also contend that the asphalt plant will not impair future development of the surrounding area, as the proposed site is ideally suited for batch asphalt plant use. Also, the plaintiffs argue that there is a need for the asphalt plant. Lastly, the plaintiffs argue: (1.) The height and bulk of the facility will not obscure the waterway and the gateway to Pleasure Beach; (2.) they have adequately addressed the environmental impacts to Long Island Sound; and (3.) The Commission did not address the impact on adjacent properties and the neighborhood under Sections 14-4— 4-5 and 14-4— 4-7 of the Regulations.
The subject property is located in an Industrial Heavy Zone. The proposal is a permitted use which requires a special permit according to the Regulations table 7-2-2 at 7.3. The Zoning Regulations, in accordance with Connecticut General Statutes § 8-2, have established particular standards for the approval of a special permit. Section 14-4-4 states:
No application for a special permit shall be granted until the Planning and Zoning Commission has made the following findings:
1. The Special Permit use(s) and Site Plan are compatible with and implement the objectives and policies of Bridgeport's Master Plan.
2. The Special Permit use(s) and Site Plan will not impair the future development of the surrounding area;
3. There is a need for the proposed special permit(s) in the area of the proposed location;
4. The height and bulk of said buildings in the application proposal are consistent with the Master Plan and applicable Development Standards, internally compatible, and compatible with other structures in the vicinity and the character of the surrounding area;
5. The proposal includes adequate safeguards to protect adjacent property and the neighborhood in general from any detrimental impacts the proposed use might otherwise have;
6. Any environmental impacts to Long Island Sound are appropriately mitigated; and
7. In the case of any proposed special permit use located in, or directly adjacent to, a residential district, the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be incongruous with residential uses, and will not present an undue hazard or inconvenience to residents.
The Commission argues that the plaintiffs had not met all of the standards set forth in Section 14-4-4 and that failure to satisfy even one of the criteria would be a basis for the denial. The Commission has a discretionary role in determining if the standards have been met, A.P. W. Holding Corp. v. Planning and Zoning Board, 167 Conn. 182, 184-85 (1978). In regard to a special permit, "[the proposed user, however must satisfy standards set forth in the zoning regulations themselves, as well as, the `condition necessary to protect the public health, safety, convenience and property values.' Acting in this administrative capacity, the board's function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." Id. Despite the administrative role of the Commission in granting a Special Permit, there is still legal discretion to determine whether a particular section of the Regulations applies to a given situation and the manner in which it does apply. Double I Limited Partnership v. Planning Zoning Commission, 218 Conn. 65, 72 (1991). "In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its discretion is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . . the ultimate issue is whether the trial court was correct in ruling that the commission's decision to grant the special permit was not arbitrary, illegal or an abuse of its discretion." Id. at 72.
The Commission has two functions. The first is as a fact finder in which the Commission weighs and considers the evidence, assesses the credibility of witnesses and the evidence and then finds the facts. Calando v. Zoning Commission, 176 Conn. 439 (1984); Jeffery v. Planning and Zoning Board, 155 Conn. 451 (1967); Tarsal v. Zoning Board of Appeals, 3 Conn.App. 47 (1983). The second function is discretionary and judgmental in which the Commission interprets its Regulations and determines whether the plaintiffs' application meets the standards and conditions set forth in the Regulations as they have been interpreted. A.P. W. Holding Corp. v. Planning and Zoning Board, supra, 167 Conn. 182. The court cannot substitute its judgment for the wide and liberal discretion vested in a land use board. Whitaker v. Zoning Board of Appeals, 170 Conn. 650, 654 (1980). A review of the records reveals information that supports the Commission's denial of the special permit.
Regarding the Master Plan the Commission had evidence that the master Plan recommends port development in this location. Because of a pipe which runs across the property, there are access problems. If the pipe were to be removed or reconfigured, the property across from the yacht club and next to the Pleasure Beach recreational area could have an impact on its use. The proposed use is not water-dependent. There are portions of the Master Plan which are aimed at removing and preventing contamination that may be caused by this type of use.
The Commission, given the traffic and health issues that were raised by the yacht club and the neighborhood residents, had the discretion to find that the proposed use would impair future development. There was also evidence that this proposal might impair other waterfront development and would interfere with the operation of the yacht club.
Regarding a need for this type of development in the area, the representative for Moutinho discussed the tax benefits to the City if the plan was approved. The Commission argues that tax benefits are not a zoning issue and are not a public health, safety and welfare issue. The evidence presented to the Commission received evidence from the plaintiffs that the asphalt plant is needed on this site by the plaintiff. However, the record is silent as to the need of the public for an asphalt plant on the site. Moutinho's representative comments were that "Mr. Moutinho wants to provide himself a reliable, affordable source of product."
Exhibit "A" at pages 3, 4 and 10.
There is an asphalt distributor already located in the City of Bridgeport.
R.O.R-Exhibit "a" at page 10.
The Commission had evidence that the height and bulk of the proposed batch asphalt plant was not adequately outlined and that placement of the plant at this site would block views of Long Island Sound to members of the public, including those in the immediate area.
As for detrimental impact on the area, the issue was hotly disputed by all of the parties. The Environmental Protection Agency is still developing standards for fugitive emissions according to the testimony of Mark Petino. Upon review of all of the testimony regarding the fifth criteria of Section 14-4-4, the Commission found that no one was able to provide any definitive testimony or evidence that this type of use would not have an affect upon the health of the residents. The Director of Health for the City of Bridgeport concluded that "an asphalt plant in such proximity to residential neighborhoods presents substantial and imminent danger to the public." Additionally, the Commission reviewed letters from physicians that support the conclusion that there are health risks in the immediate vicinity of the proposed facility. Even the plaintiffs' expert, Dr. Ostroff, a chemical engineer agreed that there was ongoing testimony before the EPA to quantify emissions from this type of development.
R.O.R.-Exhibit "a" at pages 37-38.
R.O.R.-Exhibit K.
The application also required a Coastal Area Management (CAM) review. The Commission denied the application because of environmental concerns which will be addressed in the following section.
The seventh criteria of Section 14-4-4 involves the affect of the proposed development on residential districts. While the adjacent property is not zoned specifically as residential, there are six residences across the street from this site. The plaintiffs do not want these residences considered because they are non-conforming uses as a result of the zone changes. However, these properties have been used as residents long before the zone was changed.
The plaintiffs note that despite discussion by the Commission as to the impact on neighboring properties, including the residential uses, the Commission did not address these issues in its written decision. While the Commission's written decision did not specifically address this topic by use of a separate numbered finding, the court finds that the concerns regarding impact on neighboring residential properties arc adequately addressed within the six reasons stated by the Commission for the denial of the Special Permit. The conclusions of the Commission were based on ample sufficient evidence and the denial of the Special Permit is supported by the evidence and the record.
VII Coastal Site Plan Review
The Commission cited four reasons for denying the application for a coastal site plan. The plaintiffs argue that the above-stated reasons were not supported by substantial evidence and that the Commission acted illegally, arbitrarily and in an abuse of discretion in denying the coastal site plan. The Commission's four stated reasons for the denial are as follows:
a. The project, as submitted, was not a water-dependent activity and did not require a waterfront location.
b. The development of the site would impair the views and vista of Long Island Sound and the harbor area.
c. A negative environmental and ecological impact would result from storm water run-off into the harbor and Long Island Sound.
d. Emissions from both the proposed asphalt plant and associated trucking activity would adversely impact the general area.
Section 14-3 of the Regulations sets forth the standards for Coastal Site Plan Review and approval. Section 14-3-5 states that the Commission "shall employ the criteria of General Statutes § 22a-106 and the criteria of Section 14-3-5(a)(b)(c)(d) and (e)." The Commission shall make a written finding that the proposed activity with any conditions or modifications imposed, meets the criteria of General Statutes § 22a-106(d), as well as the following criteria.
a. the environmental impacts of coastal resources and the ecosystems and habitats of Long Island Sound are suitably mitigated using best available technology;
CT Page 6163
b. the siting of structures and uses serve to protect and harmonize with significant waterfront resources and unique characteristics of the site;
c. the direct loss of significant natural resources or scenic values of the harbor area are mitigated;
d. public views to and along the water are maintained and enhanced wherever possible through careful design and siting of structures; and
e. except where public safety would be at risk or where public access would unreasonably conflict with a Water-Dependent Use or the preservation or enhancement of significant Waterfront resources, public access is promoted and appropriate public amenities are provided.
The plaintiffs argue first that the denial based upon an asphalt plant not being a water-dependent use is not authorized by the Regulations or the General Statutes because the criteria for approval do not preclude a non-water dependent use. They argue that DeBeradinis v. Zoning Commission, 228 Conn. 187, 200 (1994) sets forth a two-prong test for determining whether a use has "[a]dverse impacts on future water-dependent development opportunities and activities." Id. To deny a non-water dependent use the Commission must find that the site "(I) is physically suited for a water-dependent use for which there is a reasonable demand or (ii) has been identified for a water-dependent use in the plan of development of the municipality or the zoning regulations . . ." Id.; see also General Statutes 22a-93(17). The plaintiffs argue that the Commission did not make any of these findings required by DeBeradinis v. Zoning Commission, supra.
The plaintiffs next argue that the proposed facility will take up only a small percentage of the subject property, and thus, will not impair the view of Long Island Sound and the harbor. The plaintiffs state that no evidence was presented as to how the views would be blocked.
Thirdly, the plaintiffs argue that the Commission's finding that a negative environmental and ecological impact would result from storm water runoff into Bridgeport Harbor and Long Island Sound is not supported in the record. They point to the Coastal Area Management Report (CAM) that was submitted with the plaintiffs' application. They also submit that the City Engineering Department reviewed the plans and as to concerns regarding run-off and sewer service, the Engineering Department was satisfied with the plans presented. Lastly, the plaintiffs state that the CityPlanner and the State of Connecticut Department of Environmental Protection were satisfied that there were no adverse impacts on Long Island Sound.
The City Planner did note that the project was not a water-dependent use.
The DEP's comments were directed at provisions to enhance storm water infiltration through sheet flow over the proposed unpaved gravel surface and the creation of a vegetated buffer along the waterfront.
Fourthly, the plaintiffs argue that the Commission wrongly denied the Coastal Site Plan in finding that emissions from the facility and trucks would adversely impact the general area. The plaintiffs then proceed to reargue their position supported by Dr. Ostroff that there are few, if any, measurable health risks to the neighborhood and surrounding general area.
The subject site directly abuts Long Island Sound and was analyzed by the Commission for coastal resources and coastal affects. The Commission had correspondence from Margaret Welch, an Environmental Analyst for the State of Connecticut, stating that the proposed use is not a water-dependent use. She also voices concern for flooding hazards which would have the potential to generate debris at the site creating hazards to life and property. She recommends a modification of the plan to address her concerns.
The policies enunciated in General Statutes § 22a-92(b)(1) specifically state that the Commission should give the highest priority and preference to water dependent uses and facilities in shore front areas. The plaintiffs admit that access to the water over the existing pipes is possible, but it would be an expensive proposition to remove, reconfigure or cover the pipes to allow waterfront access. The court notes that the Commission has not made an argument or a finding that the evidence and testimony has established that there is a demand for a water-dependent use. While General Statutes § 22a-92b(1)(E) recommends that fuel and chemical storage facilities be located outside of a coastal boundary the Regulations identify the property as a HI zone permitting the proposed use.
General Statutes § 22a-92b(1)(E) recommends that fuel and chemical storage facilities be located outside of a coastal boundary. Sec. 22a-92b(1)(E) reads as follows:
(b) In addition to the policies stated in subsection (a), the following policies are established for federal, state and municipal agencies in carrying out their responsibilities under this chapter:
(1) Policies concerning development, facilities and uses within the coastal boundary are: (E) to disallow the siting within the coastal boundary of new tank farms and other new fuel and chemical storage facilities which can reasonably be located inland and to require any new storage tanks which must be located within the coastal boundary to abut existing storage tanks or to be located in urban industrial areas and to be adequately protected against floods and spills.
However, as discussed earlier in this decision, the Commission had evidence that the height and bulk of the proposed batch asphalt plant was not adequately outlined and that placement of the plant at this site would block views of Long Island Sound to members of the public, including those in the immediate area. The Commission had testimony from residents across the street from the proposed site regarding the physical and visual access at the site which is located at the entrance to the Pleasure Beach recreational facility. In all the Commission did have substantial evidence.
As noted earlier in this decision the Commission also had substantial evidence of the health concerns regarding emissions and fumes from the asphalt plant the trucks and the significant increase in truck traffic. These factors would adversely impact the general area. This evidence came from the City Health Director, the Greater Bridgeport Medical Association, and Frank Scarpa, President of the Fairfield County Medical Association. The Commission also had before them a "Fact Sheet" from the United States Environmental Protection Agency Office of Air Radiation outlining the Health and Environmental Effects of Particulate Matter. While the plaintiffs argue that their expert testimony was more convincing than the opponents of the project "[the credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." DeBeradinis v. Zoning Commission, supra, 228 Conn. 198-99. "The action of the Commission should be sustained if even one of the stated reasons is sufficient to support it . . ." Id.
While the court does not find substantial evidence to justify the first stated reason for the denial of the coastal site permit, the court does find that the Commission has substantial evidence to justify the denial based on the second, third and fourth stated reasons for the denial of the coastal site permit.
VIII Claims Pursuant to General Statutes § 22a-19
The plaintiffs argue that the intervenor complaint pursuant to General Statutes § 22a-19 is deemed to have been abandoned. The individual intervenors were named as defendants in this action. On January 8, 1999, the pro se defendants were defaulted by the court (Mottolese, J.). Further, the plaintiffs argue that the Commission has not responded to this argument in its memorandum of law and its supplemental memorandum of law.
The court finds that while these claims have been abandoned by the individual intervenor defendants, the Commission has fully considered and addressed "the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state . . ." See General Statutes § 22a-19(b), throughout its legal memorandum of law and in its written decision regarding the denial of the site plan, special permit and coastal site plan.
IX Undue Influence
The plaintiffs claim that the opponents to their proposal and applications unduly influenced the Commission at the public meetings. The Commission publicly stated its decision.
On May 5, 1998, the Commission publicly stated its decision that it had approved a site plan for another application for a batch asphalt plant. See Nine State Street v. Bridgeport PZC, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 98-035 35 06 S (Jan. 7, 2005, Dewey, J.) Following this announcement, the plaintiffs claim the citizens attending the meeting went into an "uproar." The meeting was momentarily recessed to restore order. Upon the return of the Commission, the Commission then denied that applicant's special permit and coastal site plan review. The plaintiffs contend that the Commission was unduly influenced by the public dissatisfaction with the site plan approval in Nine State Street, and, thus, denied the plaintiffs' site plan, special permit and coastal site plan review in the instant matter because of the public's displeasure with the projects proposed in Nine State Street which is a project similar in nature and scope to the instant matter.
As cited herein, the court has reviewed the decision in Nine State Street v. Bridgeport PZC, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 98-035 35 06 S (Jan. 7, 2005, Dewey, J.). In response to claims that the Commission was unduly influenced in that matter, which immediately preceded the decisions on this matter, Judge Dewey stated:
The plaintiff also suggests that the actions taken by the Commission were illegal because the Commission was improperly influenced by public opinion. In support of this extraordinary proposition, the plaintiff cites the fact that the Commission had to caution the public to remain in control during the public hearing.
"There is no evidence that the Bridgeport Planning and Zoning Commission decided this application solely upon the basis of public opinion. The court must presume that each application is considered on its own merits after an appropriate hearing. The fact that there may be strong public opinion does not mandate a presumption that the public can coerce an improper, arbitrary or illegal Commission decision. Indeed, an aroused public is the essence of the democratic process." Id.
X Conclusion
The court has examined the record to determine if there is substantial evidence for the denials. At the public hearing, there was little if any public support for the project. Most members of the public who spoke at the hearing opposed the project for the reasons indicated previously. In addition to the views expressed by the public, the record contains other substantial evidence that supports the Commission's determinations. The commission was justified in denying the plaintiff's applications. Accordingly, the plaintiff's appeal is dismissed.