Opinion
HHBCV176042642S
02-26-2019
MSW ASSOCIATES, LLC v. CITY OF DANBURY Department of Planning and Zoning
UNPUBLISHED OPINION
OPINION
STEPHEN F. FRAZZINI, JUDGE TRIAL REFEREE
The present matter is a civil action brought in two counts by MSW Associates, LLC (MSW), described in paragraph one of the complaint as "a Connecticut limited liability company with an office and principal place of business at 14 Plumtrees Road, Danbury, Connecticut ..." The first count is an administrative appeal under General Statutes § 8-8 from a denial by the defendant, City of Danbury Department of Planning and Zoning, of an application by MSW for approval of a site plan to allow MSW to construct and operate a solid waste transfer station and volume reduction plan on property located at 14 Plumtrees Road. The second count seeks a declaratory judgment on whether the proposed solid waste facility is exempt from Danbury zoning regulations or, if not, is subject to regulation under those regulations as a permitted use.
On October 12, 2017, the Department of Planning and Zoning denied MSW’s application for approval of a site plan application to build and operate the solid waste facility. A little less than a year earlier, on November 28, 2016, the Commissioner of Energy and Environmental Protection issued a permit under General Statutes § 22a-208a to MSW to construct and operate a "solid waste facility" comprised of a "transfer station" and "volume reduction plant" at 14 Plumtrees Road in Danbury. The city of Danbury and the Housing Authority of the City of Danbury, having been granted intervenor status in the administrative proceeding before the state Department of Energy and Environmental Protection, filed an administrative appeal of the Department of Energy and Environmental Protection’s permit decision under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. MSW, in turn, filed this zoning appeal of the site plan application denial under § 8-8 and action for declaratory judgment. Both matters were referred to the undersigned and are now ready for decision. After a site visit by court and counsel in May 2018, the parties appeared for trial on July 31, 2018. The present decision addresses the zoning appeal and declaratory judgment action. For the reason described below, the plaintiff’s appeal is sustained.
These are statutorily defined terms. General Statutes § 22a-207 provides in relevant part: "(3) ‘Solid waste’ means unwanted or discarded solid, liquid, semisolid or contained gaseous material, including, but not limited to, demolition debris, material burned or otherwise processed at a resources recovery facility or incinerator, material processed at a recycling facility and sludges or other residue from a water pollution abatement facility, water supply treatment plant or air pollution control facility; (4) ‘Solid waste facility’ means any solid waste disposal area, volume reduction plant, transfer station, wood-burning facility or biomedical waste treatment facility; (5) ‘Volume reduction plant’ means any location or structure, whether located on land or water, where more than two thousand pounds per hour of solid waste generated elsewhere may be reduced in volume, including, but not limited to, resources recovery facilities, waste conversion facilities and other incinerators, recycling facilities, pulverizers, compactors, shredders, balers and composting facilities; ... (11) ‘Transfer station’ means any location or structure, whether located on land or water, where more than ten cubic yards of solid waste, generated elsewhere, may be stored for transfer or transferred from transportation units and placed in other transportation units for movement to another location, whether or not such waste is stored at the location prior to transfer ..."
The court takes judicial notice of the contents of the companion file, Danbury v. Klee, Superior Court, judicial district of New Britain, Docket No. CV-17-6036083-S. The defendant here is represented by same law firm representing the defendant (and the intervening party, the Housing Authority of the City of Danbury) in the companion matter ... See Article II of the 2018 edition of the Connecticut Code of Evidence pertaining to judicial notice.
The issue of the plaintiff’s aggrievement, a necessary component of any zoning appeal, has already been addressed and found to have been satisfactorily pleaded and proven. See Memorandum of Decision on Motion to Dismiss, dated May 8, 2018.
I
FACTUAL BACKGROUND
The reason given by the Department of Planning and Zoning for denying MSW’s site plan application was that "a volume reduction plant and transfer station is not a permitted use in the IG-80 zoning district." Under a permissive zoning scheme, as in Danbury, "[a]ny use which is not specifically permitted is automatically excluded." Gada v. Zoning Board of Appeals, 151 Conn. 46, 48, 193 A.2d 502 (1963). The proposed solid waste facility would be located in Danbury’s general industrial zoning district, IG-80. As of the date of the defendant’s decision denying the plaintiff’s site plan application, the Danbury zoning regulations permitted only one type of solid waste facility in that zone— for wood waste processing. The zoning regulations also provide that a transfer station in existence before October 15, 2007 is a permitted use by special exception in the light industrial zoning district, IL-40. Until 2007, transfer stations had also been a permitted use by special exception in the IG-80 zone.
Section 1.D.2 of the Danbury Zoning Regulations, entitled "Compliance with Regulations," states "[e]xcept as otherwise provided for in these Regulations for lawfully existing nonconformities, no land, structure or premises, or part thereof, shall be constructed, reconstructed, extended, enlarged, or the use changed, or the dimensional requirements of lots, yards, courts, or open spaces changed except in conformity with the requirements of these Regulations for the applicable district in which it is located."
Section 6.B.2 of the Danbury Zoning Regulations provides in relevant part: "Land and structures may be used only for the following. a. Permitted Uses ... (25) Wood Waste Processing."
Section 6.A.2 of the Danbury Zoning Regulations provides in relevant part: "Land and structures may be used only for the following: (b) Special Exception Uses ... (14) Transfer station if in existence prior to the effective date of this amendment. [Eff. 10/15/2007]."
See MSW Associates, LLC v. Planning Commission of Danbury, Superior Court, judicial district of Danbury, Docket No. CV-08-4008817-S (August 8, 2014, Ozalis, J.). In that case, the court upheld the planning commission’s decision to deny a MSW’s application for a special exception permit and site plan approval for a transfer station at 16 Plumtrees Road. The court noted that transfer stations had been a permitted use at the time of that application, but that the Danbury zoning regulations "subsequently removed transfer stations from permitted special exceptions for the IG-80 zone ..." Id., n.1.
The evidence introduced at trial on this matter showed that a solid waste facility has been located at 307 White Street in Danbury in the IL-40 zone since approximately 1986. Supplemental exhibit 21; see also supplemental exhibits 17-20, 22-40. The original permit from the Department of Environmental Protection in 1985 was for a "solid waste resource recovery and recycling facility." Supplemental exhibit 20. In 1993, the Department of Environmental Protection granted permits to construct and operate a solid waste transfer station and solid waste volume reduction plant at that address. Supplemental exhibits 22-24. As of October 15, 2007, that facility had been used as a transfer station, volume reduction facility, and intermediate processing (recycling) center for several years. See supplemental exhibit 34. It has a total processing capacity of 1, 750 tons per day for solid waste and recyclables and has been operated by Winter Bros. Transfer Stations of CT, LLC. (Winter Bros.), since 2011. Id. In 2012, the City of Danbury Planning Commission approved a revised site plan authorizing Winter Bros. to demolish two buildings and construct a new 20, 720 square foot building. Supplemental exhibit 6; return of record, item 136. In 2014, the City of Danbury Planning Commission approved another revised site plan authorizing Winter Bros. to demolish a third building and construct a replacement. Supplemental exhibit 7; return of record, item 137. The record does not disclose whether either the 2012 or the 2014 revised site plan expanded the overall building size of the facility.
The evidence at trial also showed that Ferris Mulch Products, LLC (Ferris Mulch), filed an application with the Department of Planning and Zoning in 2004 for approval of a site plan to operate a wood waste and brush recycling facility at 6 Plumtrees Road. That site plan was approved in 2005, and the Ferris Mulch facility has been in operation since then. As of at least August 18, 2014, Ferris Mulch has had a permit from the Department of Energy and Environmental Protection to operate a solid waste volume reduction plant at that address and to receive and process up to 1, 600 tons per day "of the following types of solid waste: (1) clean wood [and] (2) landclearing debris" plus no more than 260 cubic yards per day of "residentially generated leaves" and 245 cubic yards per day of "residentially generated landclearing debris." Supplemental exhibit 41, p. 4.
The evidence further showed that the state Department of Environmental Protection had previously issued a permit for a "Single Item Recycling Facility" at this location. See Department of Environmental Protection "Approval of Registration For Single Item Recycling Facility" authorizing "Total Landscaping & Tree service, LLC @ City of Danbury Recycling Center" to operate such a facility at that location, contained in Supplemental exhibit 9, "Ferris Mulch Products, LLC— Application for Site Plan Approval (Dated: 11/15/2004)." A cover attached to that site plan application stated that the "intended use" of the facility "would be to operate a wood waste and brush recycling facility." Supplemental exhibit, page 1, Letter of Robert M. Sherwood to Dennis Elpern, Planning Director, City of Danbury Department of Planning and Zoning, dated November 15, 2004.
II
THE EFFECT OF GENERAL STATUTES § 22a-208b(b)
The present case raises the question of whether the Danbury zoning regulations have the effect prohibited by the second sentence of General Statutes § 22a-208b(b). Section 22a-208b(b) states:
Nothing in this chapter or chapter 446e shall be construed to limit the right of a municipality to regulate, through zoning, land usage for an existing or new solid waste facility. No municipal regulation adopted pursuant to section 8-2 shall have the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits of a municipality.
Section 22a-208b(b) was enacted in its present form in No. 12-2 of the 2012 Public Acts (P.A. 12-2), § 1, in response to a Superior Court decision two years earlier, Recycling, Inc. v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-10-6002308-S, 2010 WL 4884923 (November 2, 2010, Hiller, J.) . In that case, the court held that the General Assembly had in 2006 repealed state law permitting local zoning authorities to regulate solid waste facilities other than "facilities for the land disposal of solid waste," i.e., landfills. Id., *9. The 2012 enactment reinstated law that had existed since 1978 allowing local zoning bodies to regulate all types of solid waste facilities.
Recycling, Inc. v. Milford, supra, Superior Court, Docket No. CV-10-6002308-S, *3 (referring to history cited by the plaintiff that "[the] exception allowing for zoning regulation of waste disposal facilities was enacted in 1978" [internal quotation marks omitted]).
Since at least 1977, our courts have recognized that "solid waste management [is] a problem of state-wide magnitude," and that "[t]he General Assembly has enacted a rather comprehensive state-wide solid waste management program, to be administered by the commissioner of environmental protection." Colchester v. Reduction Associates, Inc., 34 Conn.Supp. 177, 180, 382 A.2d 1333 (1977).
The General Assembly has seen fit to exercise its own power of regulation of solid waste management in this state. To be sure, the General Assembly may allow localities to make additional provisions and otherwise further to control the disposal of solid waste located within their boundaries.Id., 183. As a limitation on property rights, zoning is an exercise of the state’s police power that derives from and must comply with its statutory authority and purposes. See, e.g., Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 275, 545 A.2d 530 (1988); State v. Hillman, 110 Conn. 92, 147 A. 294 (1929); Windsor v. Whitney, 95 Conn. 357, 111 A. 354 (1920). The zoning authority exercised by the defendant here must thus be construed in the context of the limitations imposed by § 22a-208b(b).
The history of the various laws and cases pertaining to the interplay between state and municipal regulation of solid waste is succinctly set forth in Judge Hiller’s Recycling, Inc. decision.
The plaintiff argues that the town is in violation of § 22a-208b(b) because solid waste facilities are not listed as a permissible use in any zone. The defendant counters that the existence of the Winter Bros. and Ferris Mulch facilities and the zoning regulations allowing wood waste processing in the IG-80 zone and transfer stations existing before 1985 in the IL-40 zone show that solid waste facilities are allowed in some zones in the city, thereby establishing compliance with the strictures of § 22a-208b(b).
The city’s zoning regulations allow for the construction and operation of one type of solid waste volume reduction facility in the IG-80 zone, specifically one for wood waste processing. As of May 15, 2017, the Danbury zoning regulations also permit rock crushing in that zone, but even if rock crushing is considered volume reduction within the meaning of the solid waste management act, this amendment does not change the analysis here. No other type of volume reduction facility is permitted under the zoning regulations to be constructed or operated anywhere in Danbury. Although the Winter Bros. facility contains a volume reduction plant, that function is not included in the zoning regulations as a use by special exception and continues to exist by virtue of General Statutes § 8-2, which provides in relevant part that "[zoning] regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations ..." The zoning regulations also permit transfer stations that existed before October 1985 in the IL-40 zone, but the zoning regulations do not permit construction of a new transfer station anywhere in the city.
Since May 15, 2017, Section 6.B of the Danbury Zoning Regulations has stated in relevant part: "Land and structures may be used only for the following ... b. Special Exception Uses ... (7) Screening and processing of earth materials ..." Section 6.B.5.c of the Danbury Zoning Regulations further explains that "(1) Screening is defined as the sifting of earth material through screen to remove stones. Processing is defined as crushing rock, stone, concrete aggregate and bituminous product."
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ..." (Internal quotation marks omitted.) Commissioner of Emergency Services & Public Protection v. Freedom of Information Commission, 330 Conn. 372, 380, 194 A.3d 759 (2018).
"Generally, courts presume that ‘or’ is used in a statute disjunctively unless there is clear legislative intent to the contrary ... Our Supreme Court has stated that [w]hen a list is joined by the disjunctive ‘or’ ... common usage strongly suggests that each item in the list be read to be separated by ‘or, ’ not ‘and.’" (Citations omitted; internal quotation marks omitted.) Red 11, LLC v. Conservation Commission, 117 Conn.App. 630, 645, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009). The court has reviewed the legislative history of P.A. 12-2 and finds no indication there of "clear legislative intent" to construe the word "or" in the second sentence of that subsection of the statute in the conjunctive, to mean "and." See, e.g., 55 S. Proc., Pt. 1, 2012 Sess., p. 163, remarks of Senator Edward J. Meyer; see also 55 H.R. Proc., Pt. 1, 2012 Sess., pp. 324-25, remarks of Representative Richard Roy. Instead, in the absence of such clear legislative intent to interpret the statute conjunctively, the statute must be construed as prohibiting municipal regulations that bar construction or alteration or operation of solid waste facilities.
Section 22a-208b(b) forbids municipal regulations that "have the effect of prohibiting the construction, alteration or operation of solid waste facilities ..." (Emphasis added.) The question posed by this case is whether municipal regulations that permit construction and operation of only one type of solid waste facility, a volume reduction plant for wood waste processing, prohibit construction of any type of transfer station, and prohibit operation of any transfer station not already in existence as of October 2007 comply with that statute.
"It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ... Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word is superfluous, void or insignificant." (Internal quotation marks omitted.) Neighborhood Assn., Inc. v. Limberger, 321 Conn. 29, 38-39, 136 A.3d 581 (2016). "[I]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended ..." (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010). "[W]hen a statutory definition applies to a statutory term, the courts must apply that definition." (Emphasis omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 693 n.7, 945 A.2d 464 (2008). In addition, "[i]t is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation." (Internal quotation marks omitted.) Barco Auto Leasing Corp. v. House, 202 Conn. 106, 115, 520 A.2d 162 (1987). The Supreme Court has articulated that "[t]he intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 143, 680 A.2d 1329 (1996). Thus, the court is "required to read statutes together when they relate to the same subject matter ... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005).
The Danbury zoning regulations prohibit construction of a transfer station anywhere in the city and the construction and operation of most types of volume reduction plants, specifically those unrelated to wood waste processing, anywhere in the city. By virtue of § 22a-208b(b), construction of "solid waste facilities" must be allowed somewhere within the city of Danbury. The Danbury zoning regulations do not allow construction of all subtypes of solid waste facilities. The plain language of § 22a-208b(b) shows, however, that the statute encompasses all subtypes listed in the statutory definition of "solid waste facility," which includes "any solid waste disposal area" including volume reduction plants and transfer stations. (Emphasis added.) § 22a-207(4). If the legislature had intended to allow a municipality to exclude any of these facilities from the reach of § 22a-208b(b), the language of P.A. 12-2 would have so indicated. By contrast, subsection (a) of § 22a-208b, addressing only facilities "for the land disposal of solid waste," shows that when the legislature intends to apply the solid waste laws to only one type of solid waste facility, it does so expressly and not by implication. Instead, subsection (b) of the statute, at issue in this case, forbids prohibiting construction of any type of operation or enterprise fitting within the ambit of the term "solid waste facility." Subsection (b) allows a municipality to use zoning laws "to regulate ... land usage for an existing or new solid waste facility" so long as the laws do not have "the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits of a municipality." See Neighborhood Assn., Inc. v. Limberger, supra, 321 Conn. 39 (statutes must be construed such that each word is meaningful). Interpreting the language otherwise would not be reasonable or rational. See State v. Courchesne, supra, 296 Conn. 710.
Section 22a-208b(a) provides: "The Commissioner of Energy and Environmental Protection may issue a permit to construct a facility for the land disposal of solid waste pursuant to section 22a-208a, provided the applicant submits to the commissioner a copy of a valid certificate of zoning approval, special permit, special exception or variance, or other documentation, establishing that the facility complies with the zoning requirements adopted by the municipality in which such facility is located pursuant to chapter 1241 or any special act."
The city argues, nevertheless, that the fact that its zoning regulations allow transfer stations in existence as of October 2007 within the IL-40 zone means that its zoning regulations do not run afoul of § 22a-208b(b). Under the Danbury zoning regulations, however, no owner of other property in the IL-40 district can construct or operate a transfer station. While such a provision may not violate the uniformity requirement of § 8-2(a); see Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 82-83, 912 A.2d 1008 (2007); the Danbury zoning regulations allowing within the IL-40 zone only transfer stations in existence as of October 2007 prohibit by implication the construction of any transfer stations after that date, as well as the operation of any such newly-constructed facilities, all in contravention of the plain language of § 22a-208b(b). Under that statute, zoning regulations cannot have the effect, as the Danbury zoning regulations do, of prohibiting the construction of solid waste facilities or of then prohibiting the operation of such facilities.
The plain language of the statute bars municipal zoning regulations from having the effect, as those in Danbury do, of prohibiting construction solid waste facilities of any type. Moreover, "it is axiomatic that those who promulgate statutes ... do not intend to promulgate statutes ... that lead to absurd consequences or bizarre results." (Internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010). "The law prefers rational and prudent statutory construction, and we seek to avoid interpretations of statutes that produce odd or illogical outcomes." State v. George J., 280 Conn. 551, 574-75, 910 A.2d 931 (2006). "[P]rinciples of statutory construction ... require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results ... We must avoid a construction that fails to attain a rational and sensible result that bears directly on the result that the legislature sought to achieve." (Citation omitted; internal quotation marks omitted.) Willow Springs Condominium Association, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 31, 717 A.2d 77 (1998). It would make little sense and would yield a bizarre result if the Danbury Zoning Regulations could not prohibit operation of a solid waste facility, because such a prohibition would have the effect barred by § 22a-208b(b), but could nonetheless prohibit operation of such a facility.
Though resort to legislative history is not necessary here, as the statute is clear and unambiguous that § 22a-208b(b) includes all types of solid waste facilities, a review of the legislative history is nonetheless instructive. The crux of § 22a-208b(b) was to restore the authority of municipalities to regulate solid waste facilities and to decide where within a municipality these facilities should be located, but to prevent municipalities from banning any type of solid waste facility within their borders. Thus, Senator Meyer commented as follows during discussion of the proposed legislation: "I think that the balance is here because within zoning, for example, a solid waste facility might not be appropriate in a residential zone, but would be appropriate in a commercial zone. And the town, if it did an outright prohibition, and just said that there is no zone in which a solid waste facility could be constructed in that town. You’ve got a very direct provision in this bill that we’re debating today that says you can’t prohibit solid waste facilities. So within a zoning plan or a zoning scheme of any town there will be, as a matter of law, a place in which one of these facilities could be constructed." 55 S. Proc., supra, pp. 164-65.
The legislative history supports the conclusion that a municipality violates § 22a-208b(b) if any type of solid waste facility is prohibited by the town’s zoning regulations.
In introducing the bill to the house of representatives, its co-sponsor Representative Roy, explained that "[t]he bill makes clear that towns can continue to regulate these traditional local issues. A town would not be permitted to pass an ordinance banning such facilities." (Emphasis added.) 55 H.R. Proc., Pt. 1, 2012 Sess., pp. 324-25.
When later asked to specify the legislative intent behind the language preventing municipalities from prohibiting solid waste facilities, Representative Roy stated the intent was "to delineate the activities of both the [Department of Energy and Environmental Protection] and the town planning and zoning boards. We cannot stop the construction. We don’t have that power. We have— can’t bar the construction of any facility like that. That’s the power of the [Department of Energy and Environmental Protection]. We control some of the other stuff around the traffic and that, that sort of thing ... And we would give the [Department of Energy and Environmental Protection] our thoughts on the location and all of that, but that’s not our decision. We can’t prohibit it." (Emphasis added.) 55 H.R. Proc., Pt. 2, 2012 Sess., pp. 385-86.
During discussion in the Senate, Senator Gayle Slossberg addressed the topic of what kind of facilities are covered by the language, stating: "this language applies broadly, not narrowly to just solid waste disposal or solid waste disposal areas or to landfills. It applies to the broader category of solid waste facility." 55 S. Proc., supra, p. 111.
There are instances during discussions of the bill in the House and Senate, cited by the City in its briefs, when legislators referred to the bill as barring "outright prohibition of a solid waste facility." (Emphasis added.) See, e.g., 55 S. Proc., supra, p. 163, remarks of Senator J. Edward Meyer. The city uses such references to "a facility" to suggest that the legislative intent would be contravened only if a town’s zoning regulations permitted no type of solid waste facility; hence, the city argues, the Danbury zoning regulations allowing construction of a single type of volume reduction plant comport with the legislative intent. Most of the remarks about "a facility," however, were from Senator Meyer, who also described the bill as saying "you can’t prohibit solid waste facilities." (Emphasis added.) See id., p. 165. Moreover, when asked by Senator Len Suzio whether "special act towns would be prohibited by this bill from passing a regulation that would have the effect of prohibiting the construction, alteration, or operation of solid waste facilities within the limits of such municipality," Senator Meyer responded "I don’t want to give a legal opinion on that, but that is the plain meaning of the language of the last sentence of the bill." (Emphasis added.) Id., p. 169. From the broad definition in § 22a-207(4) of "solid waste facility" as encompassing many different types of such facilities, to the use in § 22a-208b(b) of the plural term facilities, to the multiple uses of the term in the plural during legislative debate, the court concludes that the legislative history supports a broad construction of the second sentence of § 22a-208b(b) as barring zoning laws from prohibiting construction or alteration or operation of any type of a solid waste facility. The statute gives town the right to regulate solid waste facilities— where they may be located, etc., but not to bar any type of them. Allowing construction of only a leaf mulching facility, for example, would not relieve a city from the prohibition of that statute, and would instead exemplify the harm about which Senator Kevin Witkos worried during the legislative debate and which Senator Meyer assured would be prevented by enactment of the statute. The statutes describe and define many types of solid waste facilities, and permitting only one of those types has the effect prohibited by § 22a-208b(b) of excluding other types.
Senator John McKinney also referred to the effect of the bill in both the singular and plural:
Section 22a-208b(b) states in pertinent part: "[n]o municipal regulation ... shall have the effect of prohibiting the construction, alteration or operation of solid waste facilities." (Emphasis added.)
During discussion in the Senate, Senator Witkos asked the following question: "[Y]ou say that the [bill] ... specifically prohibits local action to prevent a solid waste facility being built in the communities. But couldn’t that be done through enacting zoning issues and that basically don’t spell out that we’re not going to allow this particular facility to be built, but the zoning regulations are developed such that there is no way one could be built." 55 S. Proc., supra, p. 164.
See Senator Meyer’s remarks referred to previously, beginning on page 13.
The court thus concludes that allowing construction of only one subset of one type of solid waste facilities in the IG-80 zone and not allowing construction of a transfer station anywhere in the city do not comport with the language of § 22a-208b(b) or the legislative intent behind that statute.
The same analysis would apply if the effect of recent amendment to the Danbury zoning regulations allowing rock crushing in the IG-80 zone is that those regulations now allow construction of two subsets of one type of solid waste facilities in the IG-80 zone.
III
DOCTRINE OF PRIMARY JURISDICTION
The city argues that the court should apply the doctrine of primary jurisdiction if it determines that the current zoning regulations have the effect prohibited by § 22a-208b(b) and either remand the case or stay the judicial proceeding to enable the zoning commission to adopt new regulations that comply with § 22a-208b(b). Although not raised until trial, the city’s argument invokes issues regarding the proper distribution of power between judicial and administrative bodies. "Primary jurisdiction applies where a claim is originally cognizable in the courts, but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body." (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58-59 (2d Cir. 1994). See also Waterbury v. Washington, 260 Conn. 506, 572-75, 800 A.2d 1102 (2002) (same).
It is unnecessary to apply the doctrine of primary jurisdiction when, as here, the issue before the court is purely a question of law. The purpose of the primary jurisdiction doctrine is to "take into account the need for uniform decisions and the specialized knowledge of the agency involved." Id., 575. The matter here does not require "the resolution of threshold issues" within the special competence of an administrative body, nor do the issues presented require "the specialized knowledge of the agency involved" for determination. The issue, rather, is one of law: do the zoning ordinances of the City of Danbury comply with the restrictions of § 22a-208b(b)? "Ordinarily, [courts afford] deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes ... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ... Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference ... [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn.App. 266, 270, 941 A.2d 966 (2008).
The defendant’s argument for application of the primary jurisdiction doctrine does not fit the typical use of that doctrine. First, the court does not need the help of an agency in interpreting overly technical regulations. Our trial courts regularly decide zoning appeals. The issues for consideration in the present action are notably different from the kind of "special competence" required in Weicker, the sole case cited by the defendant in which a court stayed a proceeding pursuant to primary jurisdiction doctrine.
In that case, group of Native Americans sued under the 25 U.S.C. § 177 (the Nonintercourse Act) to reclaim twenty acres of "its alleged aboriginal territory" within the city of Bridgeport. Golden Hill Paugussett Tribe of Indians v. Weicker, supra, 39 F.3d 54. The District Court had dismissed the action for failure to exhaust administrative remedies within the Bureau of Indian Affairs (bureau) for tribal recognition before seeking a judicial determination of their tribal status under the Nonintercourse Act. The Second Circuit remanded the case to the trial court with direction to stay the proceeding while the bureau determined the plaintiff’s tribal status by considering a number of nuanced factors under the Nonintercourse Act and bureau regulations. These factors included, whether "(a) [the group has] been identified since 1900 as ‘American Indian’ or ‘aboriginal’ on a substantially continuous basis, (b) a predominant portion of [the] group comprises a distinct community and has existed as such from historical times to the present, and, (c) [the group] [has] maintained tribal political influence or authority over its members as an autonomous entity throughout history until the present." Id., 59. The court held that allowing the bureau to make this determination would comport with important judicial policy, stating that "[a] court should delay forging ahead when there is a likelihood that agency action may render a complex fact pattern simple or a lengthy judicial proceeding short." Id., 60. It should also be noted that the issue had not yet been considered by the bureau. This is in contrast to the present action, which is an appeal in which the Zoning Commission has already had an opportunity to examine the plaintiff’s application and apply Danbury’s zoning regulations.
As MSW correctly points out in its post-trial brief, "[t]ypically a court applies the doctrine of primary jurisdiction to cases involving factual or policy issues that fall within an agency’s mandate that are beyond the typical expertise of the court." Plaintiff’s supplemental brief, p. 4. An example of the doctrine’s application in the state courts is Sharkey v. Stamford, 196 Conn. 253, 257, 492 A.2d 171 (1985). In that case, certain police officers sought to enjoin the city from adding other police officers to the eligibility list for promotion. The court applied the primary jurisdiction doctrine and required the plaintiffs to present their arguments to the city’s personnel appeals board: "[w]orking out an examination procedure to establish an eligibility list that comports with a policy of promoting equal opportunity calls for expertise and discretion; and an initial independent review ... at the agency level would serve the major purposes of the primary jurisdiction doctrine." Id., 258. As the court pointed out there, moreover, "primary jurisdiction situations arise in cases where a plaintiff, in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy." Id., 256. See also Piteau v. Board of Education, 300 Conn. 667, 681, n. 18, 15 A.3d 1067 (2011) (same).
IV
CONCLUSION
The defendant denied the plaintiff’s site plan application on the grounds that "a volume reduction plant and transfer station is not a permitted use in the IG-80 zoning district." The reason thus stated is, in effect, an admission that permitting one subset (wood waste processing) of one type (a volume reduction plant) of solid waste facility does not mean that the zoning regulations permit volume reduction plants in that zone. More importantly, the Danbury zoning regulations applied by the Department of Planning and Zoning when it denied the plaintiffs’ site plan application "have the effect of prohibiting the construction ... of solid waste facilities" throughout Danbury, contrary to the mandate of § 22a-208b(b). The plain language of that statute prohibits towns from using their zoning regulations to prevent construction of transfer stations and all types of volume reduction plants, as the Danbury zoning regulations do. Although Danbury’s zoning regulations may be permissive in nature, they also cannot have the effect of prohibiting construction of any type of solid waste facility throughout the entire town, or of then prohibiting operation of such facilities. In the face of that statute, the defendant’s reason for denying the plaintiff’s site plan application cannot withstand judicial scrutiny. The plaintiff’s appeal is sustained, the defendant’s decision is reversed, and the case is remanded to the defendant with direction to grant the site plan application.
The position taken by the defendant’s briefs and its argument before the court is that the plaintiff "is incorrect" in claiming "that the Regulations nowhere permit the construction of solid waste facilities in Danbury." Defendant’s brief, p. 1. The city’s brief thus argues that "the Regulations for the IG-80 zone, in which Plaintiff’s property lies, expressly allow a wood waste processing volume reduction facility as a use permitted as of right." Id. The court takes judicial notice that this argument contradicts assertions made by the city in the companion case. In that matter, one of the claims raised by the city in its administrative appeal is that the DEEP permit either included or should have included a condition that MSW obtain zoning approval for the proposed solid waste facility and that such approval was "highly unlikely." City of Danbury’s and Housing Authority of The City of Danbury’s Joint Brief in Support of Appeal, p. 17.
Or. allowing two such subtypes if rock crushing is deemed to be volume reduction of solid waste within the meaning of § 22a-207 et seq.
The second count of the complaint sought declaratory relief, but the plaintiff did not brief that claim. At trial its attorney also stated that "we really don’t think ... you need to reach the second count." Transcript of hearing, July 31, 2018, p. 25. That claim is therefore deemed to have been abandoned.
Section 2-1 of the Connecticut Code of Evidence, which is entitled "Judicial Notice of Adjudicative Facts," provides: "(a) Scope of Section. This section governs only judicial notice of adjudicative facts. (b) Taking of Judicial Notice. A court may, but is not required to, take notice of matters of fact, in accordance with subsection (c). (c) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration. (d) Time of Taking Judicial Notice. Judicial notice may be taken at any stage of the proceeding." Section 2-2 of the Connecticut Code of Evidence, which is entitled "Notice and Opportunity To Be Heard," provides in relevant part: "(b) Court’s Initiative. The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned." The commentary to the Connecticut Code of Evidence § 2-1(c) further states in relevant part that "[w]ithin category (2), the court may take judicial notice of the existence, content and legal effect of a court file, or of a specific entry in a court file if that specific entry is brought to the attention of the court, subject to the provisions of Section 2-2. Judicial notice of a court file or a specific entry in a court file does not establish the truth of any fact stated in that court file. The rules governing hearsay and its exceptions determine the admissibility of court records for the truth of their content."
[T]he language in lines 15 and 18 says ... that no municipality can prohibit these facilities. (Emphasis added.) 55 S. Proc., supra, p. 176.
[A] municipality cannot adopt a regulation that prohibits a facility . (Emphasis added.) Id., p. 177.
By law and pursuant to the requirements of the Draft Permit, the Applicant must obtain local zoning approval in order to construct and operate the Facility. Plainly and simply, MSW cannot meet this prerequisite ... In 2007, the City’s Zoning Commission removed transfer stations and VRFs as permitted uses in the IG-80 Zone (in which the property is located).(Citations to record omitted; footnote omitted.) Id., 14. See also Id., 3 ("VRFs have never been a permitted use in this zone"). The reason stated by the defendant for denying the site plan is thus consistent with its argument in the companion case but inconsistent with position the city has taken in its brief and argument to the court here.