Opinion
LNDCV186085567S
04-16-2019
James M. Olson v. Planning and Zoning Commission of the Town of Avon et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.T.R.
MEMORANDUM OF DECISION
Berger, J.T.R.
I
The plaintiff, James M. Olson, owner of 211 West Main Street in Avon, appeals a decision of the defendant, the planning and zoning commission of the town of Avon (commission), granting applications for a special exception and a site plan for the defendant, Kei Lam. On June 28, 2017, the defendant filed the special exception application under § VI.C.3.b of the Avon zoning regulations (regulations) seeking to renovate two existing buildings at 221 West Main Street in Avon to maintain a business office in one of the buildings and to operate a ninety-seat, "class III" restaurant in the other. (Return of Record [ROR], Items 1-2; Item 5; Item 16; Item 30; Item 32.) The commission held a public hearing on July 18, 2017, August 8, 2017, September 12, 2017, September 26, 2017, and October 17, 2017. (ROR, Items 55-59.) On November 14, 2017, the commission conditionally approved the applications. (ROR, Item 5; Item 60.) Notice of the decision was published in the Hartford Courant on November 21, 2017. (ROR, Item 63.)
Section VI.C.3.b, in relevant part, provides that a "class III" restaurant "may be authorized by the Commission as a special exception in accordance with the criteria established in Section VIII. The Commission shall consider the relationship of the proposed use to the orderly development of the district, and aesthetic contribution of the proposed development to the attractiveness of the area, and shall find that the proposed use is in harmony with the purpose of the Commercial-Retail Zone ..." (Return of Record [ROR], Item 61, § VI, pp. 4-5.)
The property is owned by Fred & Bonnie, LLC. (ROR, Item 1.) West Main Street is also known as Route 44. (ROR, Item 23.)
This building is 7, 829 square feet. (ROR, Item 12, p. 3.)
The plaintiff commenced this appeal on November 29, 2017. In his complaint, he alleges that the commission’s approvals were illegal, improper and in abuse of its discretion based upon procedural notice defects and the failure of the applications to conform to regulatory requirements as to parking, buffering and landscaping. The commission filed the return of record on May 31, 2018. On June 19, 2018, the plaintiff moved to supplement the record, the court granted the motion on June 20, 2018, and the plaintiff filed the supplemental items on July 6, 2018. Meanwhile, the defendants filed their answers on July 3, 2018. The plaintiff filed his brief on July 11, 2018, the commission and the defendant filed their briefs on August 31, 2018, and the plaintiff filed his brief in reply on September 14, 2018. The court heard the appeal on December 17, 2018.
II
General Statutes § 8-8(b)(1), in relevant part, provides that "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 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located ..." Section 8-8(a)(1), in relevant part, defines "aggrieved person" as "any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Before this court on December 17, 2018, the plaintiff entered into evidence his deed for the property his property at 211 West Main which abuts the defendant’s property at 221 West Main Street. Exhibit 1. Additionally, the plaintiff testified that he purchased the property in 1991, has owned the property during the application process and currently owns the property. Accordingly, this court finds that he is aggrieved. General Statutes § 8-8(a)(1) and (b)(1).
III
"General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain ... uses of land are permitted only after obtaining a special permit or special exception ... subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ... The terms special permit and special exception are interchangeable." (Internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244, 77 A.3d 859 (2013).
"[T]he nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ... We also have recognized that, if not properly planned for, [such uses] might undermine the ... character of the neighborhood." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426, 941 A.2d 868 (2008).
"When [considering] an application for a special permit, a planning and zoning board acts in an administrative capacity ... [Its] function ... [is] 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 ... Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, supra, 146 Conn.App. 244-45.
"[B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns ... would adversely impact the surrounding neighborhood ... The ... trial court ha[s] to 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." (Internal quotation marks omitted.) Id., 246.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which ... [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... 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 ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 427. "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).
"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 ... A zoning commission’s authority in ruling on a site plan is limited ... 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 and special permit application aid zoning agencies in determining the conformity of a proposed building or use with specific provisions of the regulations ... General Statutes § 8-3(g) sets out a zoning commission’s authority to act on a site plan application: ‘A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations ...’" (Citations omitted; internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, 112 Conn.App. 844, 847-48, 964 A.2d 549, cert. denied, 292 Conn. 905, 973 A.2d 103 (2009).
"A commission is not at liberty to ignore its existing regulations and to treat them as invalid ... When acting in a legislative capacity, a zoning commission is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ... In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and statutes." (Citations omitted; internal quotation marks omitted.) Id., 850. "It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission ... When a commission is functioning in such an administrative capacity, a reviewing court’s standard of review of the commission’s action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 322, 963 A.2d 31 (2009).
IV
The subject property consists of 1.21 acres and is located in the commercial-retail (CR) zone. (ROR, Item 1; Item 16.) Historically used as an oil change and automotive service facility, the lot is long and narrow with approximately 100 feet of frontage along the southerly side of West Main Street. (ROR, Item 12, p. 3; Item 17.) The subject property is nonconforming as to minimum size, frontage, front yard, side yard, landscaped area and maximum impervious area. (ROR, Item 30, sheet 2, Zoning Table; Item 61, § VI, p. 7.)
None of the parties argue that § III.C.2 of the regulations provides that "no nonconforming use may be changed except to a conforming use or, with the approval of the Zoning Board of Appeals, to another nonconforming use of less objectionable character." (ROR, Item 61, § III, p. 2.) Additionally, § III.C.4 prohibits extension or expansion of nonconforming uses or buildings containing nonconforming uses, but § III.C.6 allows nonconforming buildings to be altered or enlarged as long as the total added floor is not more than 50 percent of the floor area of the original building. (ROR, Item 61, § III, p. 2.)
Each section of the regulations is separately paginated. (ROR, Item 61.)
Abutting the subject property to the east, the plaintiff’s property has a structure used as a residence, but is also in the CR zone. (ROR, Item 23, p. 1; Item 30, sheet 5.) The plaintiff’s property does not have frontage on West Main Street, but has a right of way over 213 West Main Street. (ROR, Item 30, sheet 5.)
In the commission’s decision, it made the following findings as to the plaintiff’s property: "[O]n the abutting Olson site is a long vacant, structure which is in very poor condition. This structure is currently surrounded by heavy dense vegetation growth which makes the structure not visible from the street or the abutting properties. The existing dense vegetative growth further provides screening in addition to the fencing and screening provided by the applicant. The Commission is also aware and the owner acknowledges, the residential Olson property was recently offered for sale as a commercial property. In order to make this finding [t]he Commission is not making a finding of abandonment, which under CT Statutes, is primarily a matter of intent of the owner. However after deliberation, the Commission finds the nonconforming vacant structure is adequately protected by both existing and proposed screening and fencing proposed as part of this application." (ROR, Item 5, p. 4.) The plaintiff testified before this court that the property had been vacant for approximately four years and was so at the time of the application, but his son has been living there since March 2018.
The lot at 213 West Main Street has a Meineke Car Care Center operating upon it, has frontage along West Main Street and abuts the subject property to the east and the plaintiff’s lot to the north. (ROR, Item 30, sheet 5; Item 48.)
In the commission’s decision, it summarized the main issues as follows:
1. Parking: Requested relief from most restrictive regulation as may be permitted by the Commission upon showing of evidence allowing the regulation alternative as specified in Section VII.B Parking regulations. This regulation states: "The additional 10 spaces/1, 000 square feet requirement may be temporarily or permanently deferred in whole or in part by the Commission upon a finding that additional parking is not needed."
2. Coverage: Requested relief from most restrictive requirement in order to provide for required parking as permitted by regulation in accordance with Section VI.C.
3. Landscape Buffering: Requested relief from regulation as permitted by regulation Section VII.A.
4. Abutting property use/non-use/abandonment of existing structure. This issue arises out of testimony provided by the applicant and the abutting property owner and relates to adequate buffering from existing permitted uses and abutting nonconforming residential use." (ROR, Item 5, pp. 1-2.)
Traffic and vehicular access were mentioned as another concern, but this is not an issue in this appeal.
The plaintiff asserts that the commission erred in approving the applications because they violate the requirements of parking, landscaping and buffering regulations and because any waiver of these requirements was illegal as the regulations contain no ascertainable standards. The defendant and the commission counter that the commission made the appropriate findings to waive the requirements under the particular regulations which they argue are not vague.
The commission maintains that the defendant has not yet applied for the right to serve alcoholic beverages in the restaurant. In the commission’s brief, it argues that "the bottom line is that [the defendant] did not request, and the Commission did not approve, the sale of alcoholic beverages as part of the Applications." It notes that the defendant will need to meet the requirements of § V.J to sell alcohol. The defendant does not dispute that the proposed restaurant would serve alcohol or that a special permit is needed under § V.J to sell liquor. Section V.J, in relevant part, provides: "Alcoholic liquors. Buildings intended to be used for the sale of alcoholic beverages shall observe the following requirements: The plaintiff also argues that the commission approved a restaurant serving alcohol without requiring the defendant to obtain a special exception under § V.J.3 which was required because the plaintiff’s residential property abuts the subject property and the Pond Place Condominiums are within 200 feet of it. (ROR, Item 30, sheet 1.) The plaintiff also asserts that no notices were sent to abutting property owners in violation of § V.J.3.
1. Buildings shall be located at least 500 feet in a straight line from any property used for church, public school, private school, or library purposes.
2. Any portion of the floor of a building to be used with a restaurant liquor permit or hotel liquor permit or any other use involving alcohol and regulated by the State of Connecticut shall be located at least 200 feet in a straight line from a property used for residential purposes and shall not advertise any alcoholic liquors or beverages in such a way that it is visible from the street.
3. A restaurant beer and wine only permit may be permitted in any commercial zone regardless of distance to residential use only if granted a Special Exception which is found to meet the standards of Section VIII. All abutting property owners within 500 feet shall be notified of the public hearing for such a Special Exception by the applicant. Proof of notification is required ... (ROR, Item 61, § V, p. 4.)The defendant, and to some extent the commission, seemed to dispute the plaintiff’s claim that his property is used for residential purposes. Nevertheless, the commission specifically found in its decision that "the abutting property owner’s claim of a nonconforming residential use is not being challenged by this Commission or this action." (ROR, Item 5, p. 4.) Additionally, the plaintiff testified before this court and argued in his brief that his property currently has a residential use and has been continuously used as such for ninety-eight years. He also asserts that he intends to maintain the nonconforming residential use and that "there is an active building permit as a residence issued by the Town of Avon for [the] property for renovation as a residence." (ROR, Item 53, p. 733.) Nevertheless, evidence in the record demonstrates that, as recently as late 2015, the plaintiff had been attempting to sell his property for commercial use for approximately $2 million or to lease it for $2,000 per month. (ROR, Item 31.)The commission and the defendant are silent on the proximity of the proposed restaurant to the Pond Place Condominiums. According to the plaintiff, the proposed restaurant is 160 feet from the Pond Place Condominiums property located to the immediate south of the subject property. (ROR, Item 30, sheet 1.) Regardless, this is not yet an issue before the court as the defendant has not yet applied for the special exception under § V.J and the restaurant cannot sell liquor until he obtains the special exception.
First, as to parking, the plaintiff asserts a violation of § VII.B.2 which would require 142 parking spaces for the proposed uses, but the commission approved the plaintiff’s proposal with only 59 parking spaces. (ROR, Item 30, sheet 2, Parking Data.) Section VII.B.2, in relevant part, provides: "Number of parking spaces. Parking spaces shall be provided on the same lot in sufficient number to accommodate the motor vehicles of all occupants, employees, customers, and any others normally visiting the premises at any one time. Spaces shall be provided in not less than the number indicated on the following table ... Class II & Class III restaurants ... 1/2 seats plus 1/2 employees plus an additional 10/1, 000 sq. ft. of gross floor area. The additional 10 spaces/1, 000 square feet requirement may be temporarily or permanently deferred in whole or in part by the Commission upon a finding that additional parking is not needed ." (Emphasis added.) (ROR, Item 61, § VII, p. 6.)
Five of these spaces are attributed to the office use. (ROR, Item 30, sheet 2, Parking Data.)
In MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 77 A.3d 904 (2013), the Appellate Court analyzed whether a commission has the power to waive or vary certain setback and landscaped buffer requirements on a case by case basis. The court held that the commission illegally usurped the power of the zoning board of appeals and violated the uniformity requirements of General Statutes § 8-2 in waiving the requirements of the regulations. Id., 426-33; see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 22:17, p. 722 ("[a] zoning commission is ... precluded from varying the zoning regulations, including provisions concerning special permits because that authority is not delegated to it by the zoning statutes and by the uniformity concept which requires uniformity in the application of the zoning regulations in a given zoning district"); and § 22:18, p. 726 ("[a] zoning commission or other land use agency acting on an application for a special exception ... does not have the authority to vary the zoning regulations; only the zoning board of appeals has exclusive jurisdiction to vary the zoning regulations in a specific case"). Put simply, "there is nothing contained within the General Statutes authorizing the commission to adopt regulations empowering itself to vary the application of regulations when acting on a special exception request." MacKenzie v. Planning & Zoning Commission, supra, 428.
In the current case, the commission argues that "there was ample uncontested testimony based upon the applicant’s experience with a similar restaurant that the ‘additional’ spaces are not needed." The defendant similarly asserts that the commission’s action in granting the parking deferral did not constitute a waiver or a variance— only a deferment— and that MacKenzie is inapposite.
In the town planner’s July 18, 2017 memorandum, he stated, "One key aspect of this application is that it cannot meet the total parking requirements of the Zoning Regulations. The total parking required is 142 spaces as shown on Sheet 2 of the submitted plans. The amount of parking provided is 59 spaces. The applicant feels as though the provided parking is adequate for their restaurant use. Thus the applicant is requesting a permanent deferment of the 10/1000 required by the Zoning Regulations." (Emphasis in original.) (ROR, Item 12, p. 3.) Indeed, David Whitney, the defendant’s public engineer, acknowledged at the hearing that there was no space for the additional required spaces because of the size of the site. (ROR, Item 30; Item 55, p. 6.)
This court does not agree. "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 ... The words employed are to be interpreted in their natural and usual meaning ... the language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ... The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible ... [R]egulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them." (Internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, supra, 112 Conn.App. 849-50.
In the present case, the question is not whether the commission properly exercised its discretion to determine if the parking regulations are met. See Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998) ("[a]lthough it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations" [emphasis in original]). Rather, the issue is whether the waiver in the regulation is proper in the first instance. Section VII.B.2 purports to allow the commission to waive or vary the required parking without any measurable standard. See Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976) ("Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid"). Without adequate standards, the commission’s waiver of the parking requirements constituted a variance of its regulations. The commission does not have the authority to vary its regulations; MacKenzie v. Planning & Zoning Commission, supra, 146 Conn.App. 424-30; or to violate the uniformity requirement throughout the district. Id., 431-35. "Statutory uniformity requires that regulations are sufficiently precise so as to apprise both the zoning commission and an applicant of what is required, as well as to provide guidance to the zoning commission in applying the regulation, and to ensure equal treatment to each applicant subject to the regulation." Harris v. Zoning Commission, 259 Conn. 402, 434-35, 788 A.2d 1239 (2002).
Second, in terms of the landscaping requirements, the defendant’s proposed use would reduce the landscaped area from 22, 796 square feet to 18, 213 square feet or from 43.33 percent to 34.62 percent of the total lot area. (ROR, Item 30, Zoning Table.) The plaintiff argues that this violates § § VI.C.4 and VII.A.2.a.
Sections VI.C.4 and VII.A.2.a of the regulations require that a minimum of 50 percent of the site in commercial and industrial zones be landscaped. (ROR, Item 61, § VI, p. 7; § VII, p. 1.) Section VII.A.2.b provides that the commission "may allow by special exception a reduction in the overall landscaped area to 40 percent in the case of redeveloped sites, when in the opinion of the Commission, improvements to building and landscaping will be an overall benefit to the community and where the special exception criteria as outlined in Section VIII have been met." (Emphasis added.) (ROR, Item 61, § VII, p. 1.) At 34.62 percent landscaped area, the defendant’s proposal does meet either the 50 or the 40 percent requirements. (ROR, Item 30.)
Section VIII provides: "In considering an application for special exception (except for signs), the Commission shall determine that the following specific conditions are met:
A. Suitable location for use. That the location and size of the proposed use and the nature and intensity of use in relation to the size of the lot will be in harmony with the orderly development of the area and compatible with other existing uses.
B. Suitable structures for use. That the kind, size, location and height of structure and the nature and extent of landscaping on the lot are appropriate for the use and will not hinder or discourage the appropriate use of adjoining property or diminish the value thereof.
C. Neighborhood compatibility. That the design elements of the proposed development are attractive and suitable in relation to the site characteristics and style of other buildings in the immediate area, and that the proposed use will not alter the essential characteristics of the area or adversely affect property value in the neighborhood.
D. Adequate parking and access. That the parking and loading facilities are adequate and properly located and the entrance and exit driveways are laid out to achieve maximum safety.
E. Adequate streets for use. That streets providing access to the proposed use are adequate in width, grade, alignment and visibility, and have adequate capacity for the additional traffic generated by the proposed use, and the proposed use will not impede the implementation of the Traffic Circulation Plan.
F. Adequate emergency access. That the proposed use shall have easy accessibility for fire apparatus and police protection and is laid out and equipped to further the provision of emergency services.
G. Adequate public utilities. That the water supply, the sewage disposal, and the stormwater drainage shall conform with accepted engineering criteria; comply with all standards of the appropriate regulatory authority; and not unduly burden the capacity of such facilities.
H. Environmental protection and conservation. That the proposed plans have provided for the conservation of natural features, drainage basins, the protection of the environment of the area, and sustained maintenance of the development.
I. Consistent with purposes. That the proposed use will not have any detrimental effects upon the public health, safety, welfare, or property values, and that the proposed use will not conflict with the purposes of the regulations. (ROR, Item 61, § VIII.)These general standards do not provide any specific, unambiguous criteria. Moreover, the commission did not utilize these standards in granting the special exception from the landscaping requirements.
The commission found "that the requirements for the needed Special Exception Requirements for Landscaped Area are met by the plans submitted based on the overage amount and excellence of landscaping design shown on the submitted plans." (Emphasis added.) (ROR, Item 5, p. 3.) This phrasing and the unambiguous wording of § VII.A.2.b indicate that a special exception was required. Additionally, the zoning table in the defendant’s plans contain asterisks that indicate that at least his engineer knew that special exceptions would be needed for the reduction in landscaping and an increase in impervious area. (ROR, Item 30, sheet 2.) The defendant did not apply for a special exception under § VII.A.2.b and only applied for a special exception for a class III restaurant under § VI.C.3.b. (ROR, Item 1.) Thus, the commission erred under § VII.A.2.b in granting the special exception as to the reduction in landscaping. See Fedus v. Zoning & Planning Commission, supra, 112 Conn.App. 850 ("[a] commission is not at liberty to ignore its existing regulations and to treat them as invalid" [internal quotation marks omitted]); see also Cassidy v. Zoning Commission, 116 Conn.App. 542, 555, 976 A.2d 29 (2009) (holding that absence of published notice of proposed locations of additional parking was insufficient "[b]ecause an important function of the notice requirement is to alert those who may be affected by a proposed change in land use").
Additionally, the commission’s finding "that the requirements for the needed Special Exception Requirements for Landscaped Area are met by the plans submitted based on the overage amount and excellence of landscaping design shown on the submitted plans" is based upon § VII.A.7.b. This regulation provides: "The Commission may reduce the landscape requirements by not more than 25 [percent] for excellence in building or space design. The Commission shall consider, among other features, the site characteristics, compatibility of proposed structures with surrounding architectural types, quality of building materials and the size and quality of landscape materials." (ROR, Item 61, § VII, p. 4.) The commission argues that "[t]he specific criteria to be considered in establishing ‘excellence’ is set forth in the Regulations" allowing it to consider existing vegetation, abutting property uses and any "physical limitations" including a nonconforming status.
The court notes that the waiver for "excellence in building or space design" seems to suffer from the same problem as the waiver of the parking regulation, i.e., it is vague. With the exceptions perhaps of "quality of building materials and the size and quality of landscape materials," the regulation appears to lack "[a]dequate, fixed and sufficient standards of guidance." See Sonn v. Planning Commission, supra, 172 Conn. 162.
The plaintiff correctly asserts the commission exceeded the 25 percent reduction of § VII.A.7.b as "25% of 50 percent is 37.5 percent, not the 34.62 percent proposed by the applicant." The defendant counters that the 25 percent was taken from the existing, nonconforming 43.33 percent. This would, however, increase the nonconformity of the lot; see footnote 4 of this memorandum of decision; something the commission could not do. See Connecticut Resource Recovery Auth. v. Planning & Zoning Commission, 225 Conn. 731, 740, 626 A.2d 705 (1993) ("It is a general principle in zoning that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase ... While a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use, a change in the character of a use ... does constitute an unlawful extension" [citations omitted; internal quotation marks omitted]). The commission did not specifically make a finding as to whether the 25 percent reduction was being taken from 40 or 50 percent. Thus, the court cannot determine whether the board correctly interpreted its regulations. See Meriden v. Planning & Zoning Commission, supra, 146 Conn.App. 245. Regardless, the landscaping issue need not be remanded back to the commission as the commission’s waiver is improper for the reasons explained herein.
Finally, the plaintiff argues that the commission’s decision regarding the bufferyard violated § VII.A.5.c and that the waiver contained therein was impermissible. With respect to the bufferyard, the commission found that "the specific special conditions as enumerated by the applicant’s Counsel for this property [are] as follows: The existence of the waterline easement in the southeastern side yard; [t]he adaptive reuse of the existing building; the narrow shape of the existing property, and
The Commission finds based on [§ VII.A.5.c], existence of the noted special conditions found in the field that based upon existing and proposed screening, and fencing that proposed buffering and screening as shown on the applicant’s current site plan are adequate for protection of the existing vacant structure. (ROR, Item 5, p. 5.)Section VII.A.5.c, in relevant part, provides: "A landscaped buffer shall be provided along side and rear yards where Commercial Zones, Industrial Zones, or approved special exception uses within Residential Zones abut Residential Zones or uses ... These side/rear yard buffer requirements may be reduced or waived at the discretion of the Commission when warranted by special conditions. The Commission shall determine which type of bufferyard within each category shall be used upon a review of the site design, topography, existing vegetation and abutting land uses. The Commission may authorize the use of existing vegetation in lieu of part or all of the bufferyard requirements. Also, the Commission may require the substitution of the evergreen plant materials shown in the bufferyard graphic. The use of B1, B2, or B3 berms may also be required by the Commission where deemed appropriate in any bufferyard as an additional buffering mechanism." (ROR, Item 61, § VII, p. 3.) Section VII.A.6 further provides: "Existing plant materials may be used to meet all or part of the landscape regulations. Existing trees in good condition over 12 inches in caliper shall be preserved unless approved for removal by the Zoning Enforcement Officer." (ROR, Item 61, § VII, p. 3.)
After MacKenzie, the applicants therein returned to the commission which again granted a special exception. The approval was then appealed in Santarsiero v. Planning & Zoning Commission, 165 Conn.App. 761, 140 A.3d 336 (2016). In Santarsiero, the court addressed the granting of an exception to a buffer requirement: "Section 117-902(G)(2) specified that the landscape buffer, for property zoned DB1, must consist of at least three rows of evergreen trees planted fifteen feet apart. The regulations provided two exceptions: (1) if the commission concluded that the property’s natural vegetation formed an effective buffer then the commission had the discretion to augment or satisfy the landscaping requirement, or (2) if the buffer area was an inland wetlands area, then the commission, in order to preserve and protect the inland wetlands, had the discretion to waive the buffer requirement or prescribe alternative requirements." (Footnote omitted.) Id., 771-72. The court held that the commission, which had not specifically stated the reason for granting the exception, had sufficient evidence in the record to support its decision due to the stated criteria in the regulations: natural vegetation providing a sufficient buffer and the inland wetland areas on the property. Id., 774-75. Additionally, the court held that other facts, including a conservation easement and variations in elevation, supported the commission’s decision. Id. The court concluded that "[i]t was within the commission’s discretion to determine if the remaining natural vegetation provided an effective landscape buffer." Id., 775.
Like the regulation in Santarsiero, the regulations in the present case provide specific standards for the commission to exercise discretion as to the bufferyard. Evidence in the record supports the commission’s findings of "special conditions" to reduce the bufferyard. Specifically, the commission cited the waterline easement in the southeastern side yard, the reuse of the existing building, the narrow shape of the subject property and found that the existing and proposed screening and fencing were "adequate for protection" of the plaintiff’s property. (ROR, Item 5, p. 5.) Therefore, the plaintiff has not sustained its burden to prove that the commission’s reduction of the bufferyard was unreasonable, illegal or arbitrary.
For the foregoing reasons, the appeal is sustained in part and dismissed in part.