Opinion
AANCV094012214S
05-25-2017
Recycling, Inc. et al. v. Planning and Zoning Board of the City of Milford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barry K. Stevens, J.
On August 4, 2009, this administrative appeal was instituted by the plaintiffs, Recycling, Inc. (Recycling), Joseph F. Barrett, Roland F. Barrett, and Michael DeDonato, Trustee, against the Planning and Zoning Board of the City of Milford, seeking to reverse the Board's denial of applications for a special permit and site plan approval pertaining to property located at 990 Naugatuck Avenue, Milford, Connecticut. The plaintiffs filed an amended appeal dated September 24, 2009, and the Board filed its answer and return of record on October 5, 2009. On March 1, 2010, the court granted a motion to intervene filed by Caswell Cove Condominium Association, Inc., an abutter of the property. The plaintiffs amended their appeal again on February 24, 2012. Recycling filed a Chapter 11 bankruptcy petition on January 26, 2016. On June 16, 2016, the bankruptcy court issued an order modifying the automatic stay of 11 U.S.C. § 362 and authorizing the continuation of this appeal.
On November 9, 2016, Recycling filed its brief in support of its appeal. The other plaintiffs did not expressly join in this brief. On December 30, 2016, the Board filed its brief in opposition to the plaintiffs' appeal. Recycling filed a reply brief on January 18, 2017, and the Board filed a reply brief on February 3, 2017. The court held a hearing on the plaintiffs' appeal on January 27, 2017.
On June 16, 2009, Recycling made an application to the Board for a special permit approval and a site plan approval to construct a recycling volume reduction facility at the property. The special permit application was governed by article 3, § 7.2 of the Milford Zoning Regulations (regulations); and the site plan application was governed by § 3.10.1.11 and § 7.1 of the regulations. On July 7, 2009, after the submission of these applications, the Board amended the regulations to prohibit the plaintiffs' proposed use of the property as a volume reduction recycling facility. Milford Zoning Regs., art III, § 3.12.5.3. This zoning change became effective on July 22, 2009. There is no dispute that under General Statutes § 8.2h(a), this zoning change was inapplicable to the plaintiffs' applications and could not be used to deny the applications because the applications were filed before the zoning change.
The plaintiffs' property is in the Housatonic Design District Zone. Effective July 22, 2009, the Board amended the regulations regarding this zone by the regulations, § 3.12.5.3, entitled Prohibited Uses: " The following shall be expressly prohibited: Trash hauling, solid waste processing, construction and demolition debris storage and processing, recycling plants, and volume reduction facilities. To the extent that these uses are accessory to permitted principal uses, they shall be allowed." This amended zoning regulation should be compared to General Statutes § 22a-208b(b), which was amended effective March 6, 2012: " No municipal regulation adopted pursuant to [General Statutes] section 8-2 shall have the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits of a municipality."
General Statutes § 8-2h(a) provides the following: " An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application."
The Board held a public hearing on the plaintiffs' applications on June 21, 2009. The hearing lasted for about three hours, beginning about 9:30 p.m. and ending about 12:45 a.m. At the end of the hearing, the plaintiffs' applications were denied in a written decision that was immediately available.
The Board stated the following reasons for its denial of the plaintiffs' applications:
1. The proposed application includes the processing of material types that are specifically prohibited within the Housatonic Design District zone by the City's Zoning Regulations Section 3.10.5.7. 2. A Special Permit application is required for some of the proposed uses and has not been submitted. 3. Information about increased traffic and truck volume has not adequately been provided, however the size of the proposed facility and the proposed tonnage capacity (1, 000 tons/day) suggest a significant number of truck trips that will result in negative impact to the adjacent residential neighborhoods. 4. The parcel is not located on a legally accepted street, but is reached from Naugatuck Avenue via a single easement that provides ingress and egress. The access way as legally defined and shown on the submitted surveys do not provide sufficient width along its entire length and does not comply with Section 5.1.10.5 that requires at minimum 20 ft. in width, in absence of additional documentation and authorization to expand this easement, the access to the site is found to be inadequate, particularly given the proposed truck traffic. 5. The site can only be accessed via adjacent residential neighborhoods along Naugatuck Avenue whether through a southern route via Bridgeport Avenue (Route 1) or the northern route off Exit 35. The proposed use generates additional truck traffic that will negatively impact the adjacent residential neighborhoods. 6. Connection to the City Sewer System is required based on the site's location in the Flood Hazard zone. The applicant has indicated connection to the sewer system but has not demonstrated connection to be viable. Authorization and easements would be required from the landowners, including an active railroad right-of-way located between the subject site and the City's infrastructure on Naugatuck Avenue. 7. The application shows a rail spur and a rail car loading area, but does not provide additional information about connection to the existing Railroad right-of-way or coordination with the existing commuter traffic to mitigate negative impacts. 8. The application indicates future use of the existing bulkhead for water transport of materials, but has not provided information about this use to demonstrate that there will be no adverse impacts. The proposed water based use is also not reviewed as part of the Coastal Site Plan review. 9. The Soil Erosion and Sedimentation Control Plan does not adequately provide information about stockpiling, testing of soils, or transport of potentially contaminated soils located on site. 10. The survey provided shows area within the Flood Hazard Zone (AE-10), but the Coastal Site Plan review does not identify or address the potential impacts of the proposed development to this area. 11. The Coastal Site Plan review uses correspondence regarding the Natural Diversity Database from an earlier application from the site in 2006 that may or may not reflect current site conditions and is not acceptable for the current application.
DISCUSSION
I
AGGRIEVEMENT
" [P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). " 'Aggrieved person' means a person aggrieved by a decision of a board ..." General Statutes § 8-8(a)(1).
At the hearing on the plaintiffs' appeal, the court heard testimony from Joseph Regensburger, the vice president of Recycling. On the basis of this testimony, the court finds that Recycling was the tenant of the property when the special permit and site plan applications were filed with the Board and was the owner of the property when this action was filed. On the basis of this finding, the court further concludes that Recycling has proven aggrievement sufficient to establish standing to maintain this administrative appeal under General Statutes § 8-8. At the hearing, the Board moved to dismiss the other plaintiffs and this motion was granted absent objection. Thus, this decision will refer to Recycling as the plaintiff.
II SCOPE OF JUDICIAL REVIEW
" In appeals from administrative zoning decisions ... the decisions will be invalidated ... if they [are] not supported by 'substantial' evidence in [the] record." Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995). " The 'substantial evidence' standard requires enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Id.
III
A
As previously stated, the plaintiff's appeal contests the Board's denial of its site plan and special permit applications. In regards to site plan applications, General Statutes § 8-3(g)(1) states the following in part: " The zoning regulations may require that a site plan be filed with the commission ... to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations ... A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning ... regulations." When considering a site plan application, a planning and zoning commission sits in an administrative capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977). A zoning commission has no independent discretion beyond determining whether a plan as submitted complies with all of the applicable regulations. Kosinski v. Lawlor, 177 Conn. 420, 426-27, 418 A.2d 66 (1979). Because of the provisions of § 8-3(g), a zoning commission's review of a site plan application has been described as ministerial. Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn.App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Although a zoning commission's review of a site plan application may be characterized as narrow and ministerial, when the plan is submitted with a special permit application, the specifics of the proposal will also be reviewed under the zoning regulations governing special permits. See Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992).
In regards to special permit applications, " [a] special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations ... The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values ... Acting in this administrative capacity, the [zoning commission'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." (Internal quotation marks omitted.) Felsman v. Zoning Commission, 31 Conn.App. 674, 677-78, 626 A.2d 825 (1993).
Whereas a zoning commission has no discretion to deny a special permit application that meets the regulations, it has broad discretion to determine whether the standards of the regulations are met. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998). " In applying the law to the facts of a particular case [involving a special permit application], 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.
In its appeal, the plaintiff asserts numerous grounds why the decision should not be upheld, but in its briefs filed in support of the appeal, the plaintiff makes two arguments. The plaintiff's primary argument is that the Board decided to deny the applications before the hearing was held. In support of its predetermination argument, the plaintiff contends that the Board's reasons for the denial were invalid; the administrative proceedings were fundamentally unfair; and the zoning regulations were amended to prevent the plaintiff's proposal.
The court deems the reasons for the appeal stated in the complaint and not addressed in the plaintiff's briefs as abandoned. See generally, Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 351, 353, 918 A.2d 288 (2007) (" [w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned" [internal quotation marks omitted]).
In its initial brief, the plaintiff also makes a second, somewhat curious argument that a special permit was not required by the zoning regulations. In support of this argument, the plaintiff first contends that a limited processing facility presently operates on the property, and the proposed volume reduction facility does not increase the existing use. This contention is belied by the extensive evidence of the administrative proceedings concerning the different and increased use of the property contemplated by the proposal. The plaintiff also contends that the special permit was a requirement of the Department of Energy and Environmental Protection, and not a requirement under the zoning regulations. The plaintiff makes this argument without adequate explanation. General Statutes § 22a-208b provides that DEEP may issue permits for the construction of a solid waste facility when the applicant has provided documentation " establishing that the facility complies with the zoning requirements adopted by the municipality in which such facility is located ..." The court also notes that DEEP revoked the plaintiff's general permit to operate the recycling facility. This decision is presently on appeal in the Appellate Court. Recycling, Inc. v. Commissioner, Dept. of Energy and Environmental Protection, Superior Court, judicial district of New Britain, Docket No. CV-15-6028562-S, (January 20, 2016, Cohn, J.).
B
a
As previously stated, on June 16, 2009, Recycling filed its site plan and special permit applications in order to construct a recycling volume reduction facility at the property. The Board amended its regulations on July 7, 2009, to prohibit this use in the district where the plaintiff's property is located, and this amendment became effective on July 22, 2009. The public hearing on the plaintiff's applications was held on July 21, 2009. Although the plaintiff's applications were filed before the effective date of this amendment and were not governed by the amendment's prohibition, the plaintiff argues that the amendment so reflected the Board's antagonism toward the plaintiff's proposal that its applications were destined to fail. More specifically, the plaintiff insists that prior to the public hearing, the members of the Board predetermined the outcome of the applications. To support its claims, the plaintiff took the depositions of two Board members, Kim Rose and Susan Shaw.
The record of the administrative hearing reflects that the applications received close review and the hearing itself reflects contentious exchanges. Nevertheless, the court rejects the plaintiff's implication that the mere enactment of the zoning amendment establishes predetermination. The question remains whether the plaintiff has proven its claim that the public hearing was a sham and the Board's reasons for denying the applications were purely or primarily pretextual. The members of the Board are presumed to have acted legally and appropriately. " To overcome the presumption, the plaintiff ... must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable." (Internal quotation marks omitted.) O& G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995).
On the issue of predetermination, both parties rely on the Supreme Court's decision in Marmah, Inc. v. Greenwich, 176 Conn. 116, 405 A.2d 63 (1978). In Marmah, predetermination was found because three conditions coexisted: " (1) none of the reasons given for denial for a site plan application were valid; (2) the applicant was not given a fair hearing by the commission; and (3) the change in zoning regulations was enacted primarily for the purpose of preventing the property owner from going forward with its contemplated building project." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 47.2, p. 35.
b
The Board provided eleven reasons for denying the plaintiff's applications. See footnote 3. The plaintiff does not address the Board's reasons individually and articulate specifically why each lacks validity or support in the record. Rather, the plaintiff attacks them all broadly by arguing that the reasons do not cite to a violation of any specific zoning regulation, but impermissibly rely on generalized public health and safety considerations that are too vague and standardless. This broad attack as articulated by the plaintiff is not supported by the applicable case law. The law is well established that a zoning commission may rely on general factors such as the public health and safety to deny special permit applications.
Moreover, a review of the reasons provided by the Board to reject the applications indicates that all of them cannot be characterized as being merely general and entirely unrelated to specific zoning regulations as the plaintiff contends. For example, the third and fifth reasons for the denial of the applications explain that the increased truck traffic will have a negative impact on the adjacent residential neighborhoods. See fn.3. The fourth reason explains that the property is not located on a legally accepted street and is reached via an easement that provides insufficient width. Id. The zoning regulations under Section 7.1.3 (concerning site plan applications) expressly provide that the proposed traffic access ways should be adequate and that the proposed uses " will not be detrimental to the character and appearance of the surrounding neighborhood and will not adversely affect the general welfare of the inhabitants of the [c]ity." Similarly, Section 7.2.3 (concerning special permit applications) provides that the nature and intensity of the operations shall be such that " vehicular traffic to and from the use ... will not be hazardous, inconvenient or detrimental to or conflict with the flow of traffic in the neighborhood, " and shall not " hinder or discourage the appropriate development and use of adjacent land and buildings, or impair the value thereof." See Barberino Realty & Development Corp. v. Planning and Zoning Commission, supra, 222 Conn. 617-18 (special permit properly denied when proposed driveway was too close to adjacent property and did not allow for adequate traffic circulation).
" [The Supreme Court has] concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, we have stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood ... The Appellate Court has acknowledged that Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process ... If the special permit process were purely ministerial there would be no need to mandate a public hearing ...
" 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 ... 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 ...
" The plaintiff argues that the Commission has no independent discretion to deny a plan which satisfies the standards contained in the special permit regulations. Although 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. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it." (Citations omitted; emphasis in original; internal quotation marks omitted.) Irwin v. Planning & Zoning Commission, supra, 244 Conn. 627-28, accord Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn.App. 515, 522, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994) (" the plaintiffs' claim that the general health, safety and welfare requirements contained in the regulations must be considered only for the purpose of placing conditions on a special permit and may not be considered in determining whether to deny or grant the permit must fail"); Parillo Food Group, Inc. v. Board of Zoning Appeals, 169 Conn.App. 598, 605, 151 A.3d 864 (2016) (" Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process" [internal quotation marks omitted]).
In its reply brief, the plaintiff makes the alternative argument that the general provisions of the regulations governing special permit applications are so vague and standardless that they violate due process protections. This argument is rejected for two reasons. First, the grounds for the plaintiff's appeal of the Board's decision is limited to the claims asserted in its complaint. See generally, Levy v. Carter Rice & Co., 136 Conn. 216, 221, 70 A.2d 147 (1949). The complaint as amended contests the " review process and public hearing" provided to the plaintiff, but makes no specific constitutional challenge to the zoning regulations themselves.
The section of the special permit regulations contested by the plaintiff as being unconstitutionally vague states the following: " Section 7.2 General Conditions. (1) Plan of Conservation: That the proposed Site Plan shall be in general conformance with the intent and purpose of the current Plan of Conservation and Development of the City of Milford; (2) 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 hazardous, inconvenient or detrimental to or conflict with the flow of traffic in the neighborhood; and (3) The location and size of such use, the nature and intensity of operations involved in or conducted therewith, the location and height of buildings, structures, walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings, or impair the value thereof."
Second, the plaintiff's constitutional argument fails on its merits. " A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 672, 894 A.2d 285 (2006). " The party challenging a statute's constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt ... Additionally, in a vagueness challenge, such as this, civil statutes can be less specific than criminal statutes and still pass constitutional muster ... To prove that a statute is unconstitutionally vague, the challenging party must establish that an ordinary person is not able to know what conduct is permitted and prohibited under the statute." (Citations omitted.) Bottone v. Westport, 209 Conn. 652, 657-58, 553 A.2d 576 (1989). In this case, the plaintiff has not met its heavy burden of proving beyond all reasonable doubt that the zoning regulations governing special permit applications are unconstitutionally vague. The plaintiff's broad vagueness argument is controlled by the Supreme Court's decision in Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 607, where the court held that a regulation that required a zoning commission, in considering a special permit, to take " adequate safeguards for the protection of other properties and provide for adequate traffic circulation and parking" was not unconstitutional on vagueness grounds. (Internal quotation marks omitted). Id., 619.
c
The plaintiff next contends that the Board's negative predisposition toward its application is evidenced by a lack of " fundamental fairness" associated with the administrative hearing. Although its application was filed on June 16, 2009, and the hearing was held on July 21, 2009, the plaintiff claims delays based on unsuccessful attempts, beginning as early as 2007, to file the applications. Additionally, the plaintiff claims that contrary to § 7.2 of the regulations, the plaintiff's special permit application was not reviewed by the city engineer, city police, or fire department. The plaintiff states that a request for a continuance for further departmental or staff review was not accepted. The plaintiff emphasizes that the reasons articulated by the Board to deny the applications had been prepared before the hearing by the Board's staff.
Reviewing the plaintiff's claims in the context of the entire administrative record, the court finds its claim of fundamental unfairness unsupported. There is evidence in the record supporting the position that the plaintiff's prior applications did not go forward because they were incomplete or superceded. (R.ff 94-98.) The record also indicates that both the city planner, David Sulkis, and the assistant city planner, Enmeline Harrigan, submitted reports and testimony indicating that the present applications were incomplete and deficient. (R.ff 94-95.) These deficiencies included the following: ingress and egress to the property were provided through a legal easement without documentation on how it would be expanded to accommodate the proposed truck traffic (R.ff 99); insufficient information was provided about the daily tonnage of the facility, and the information provided raised concerns about traffic congestion (R.ff 101); and the proposed connection between the plaintiff's property and the city sewer system was obstructed by properties owned by neighbors. (R.ff 101-02.) The mayor and various neighbors testified against the plaintiff's proposal, and concerns were also raised by Milford's inland wetlands compliance officer and the state Department of Environmental Protection. In regards to the denial prepared by the Board's staff before the hearing, as a general rule, the " [p]reparation by the staff of a zoning commission of a proposed motion on a pending application does not amount to predetermination by the agency members." 9B R. Fuller, supra, § 47.2, p. 37.
Many of the objections raised against the proposal were contested and rebutted by the plaintiff, but the important point here is that the court cannot conclude on the basis of the record as a whole that the plaintiff was denied a fair opportunity to support its applications and respond to the objections. Similarly, the court cannot conclude that the objections directed to the applications were pretextual or without evidentiary support.
The facts of the Supreme Court's case in Marmah, Inc. v. Greenwich are distinguishable. As compared to the facts in Marmah, the Board's review of the plaintiff's application was neither " casual" nor " perfunctory, " as evidenced by the fact that the hearing lasted more than three hours. Marmah, Inc. v. Greenwich, supra, 176 Conn. 118. Additionally, the plaintiff's representatives received the opportunity to rebut the opposing positions, and certainly all the staff reports and testimony did not support approval. Id. In short, the court cannot find that the administrative record reflects " substantial evidence" that the plaintiff's applications were not " afforded a fair and reasonable hearing" by the Board. Id.
d
The plaintiff's final argument is that the Board's amendment to the zoning regulations was done primarily to preclude the plaintiff's project. The plaintiff does not provide any direct evidence to support this claim, and seeks its inference based on the circumstances surrounding the filing of the applications and the adoption of the amended regulation. On the other hand, the plaintiff did not appeal the amendment to the zoning regulations, and more important, as compared to the facts in Marmah, the Board is not attempting to use the zoning amendment to bar the plaintiff's applications. The Board held a hearing and heard evidence regarding the applications, and the court cannot find that all of the reasons stated in its denial of the applications are without substantial basis in the record or unrelated to the provisions or standards of the zoning regulations. Stated differently, the court cannot conclude that the Board " failed to provide proper reasons for denying the [applications], and that the reasons that were provided were not substantiated by the evidence [of the administrative record]." Id.
CONCLUSION
Therefore, for these reasons, the appeal of the plaintiff Recycling, Inc. is hereby dismissed.
So ordered.