Opinion
No. CV 02 0812881 S
January 13, 2005
MEMORANDUM OF DECISION
The plaintiff Roncari Industries, Inc. ("Roncari") has appealed from the action of the defendant planning and zoning commission ("commission") in amending the zoning regulations at the request of the defendant Frank Bauchiero, Jr. ("Bauchiero"). The regulation in question allows, with several conditions, valet parking in business zones by special permit, but only on Rte. 75 and only on lots which were in existence at the time the amendment was adopted. The issues on appeal are whether the plaintiff is aggrieved for the purpose of bringing the appeal, whether the limitations to specific locations violate the uniformity requirement, whether the timing of the notices of the meetings and the availability of the proposed amendment for inspection met statutory mandates, and what the effect is of a section of the amendment that purports to oust the Zoning Board of Appeals of any authority to grant variances regarding such permits.
More specifically, the regulation, which appears at Tab 1 in the Return of Record, allows the commission to permit valet parking as a permitted use, by special permit. Criteria are specifically stated in the regulation: they include conditions that the parcel or parcels of land must be existing as of October 1, 2001, fronting on and possessing existing "direct access" to Rte. 75 in a business zone which contains existing buildings and improvements "committed to uses which substantially under-utilize the parcel's parking capacity and due to unique characteristics are unlikely to fully utilize such capacity if and/or when developed as some other permitted use in the underlying zone." Other more general criteria are stated, including benefit to the town, compatibility with the area, and setback and screening requirements.
I. Aggrievement
At the hearing on appeal, the plaintiff offered evidence which, I find, supports the finding of aggrievement, but the question is a close one. The plaintiff Roncari owns property at 558 Elm Street in Windsor Locks. The property is in a B-1 zone. The property abuts 225 Ella Grasso Turnpike, which is also known as Rte. 75. That property meets the eligibility requirements for consideration for a special permit for valet parking under the amendment in question. It is a reasonable possibility that the property at 225 Ella Grasso Turnpike will be used for valet parking should the amendment pass muster; this finding is based partly on a document from a realtor.
The posture of this case, for the purpose of aggrievement, is remarkably like that of Cole v. Planning Zoning Commission, 30 Conn.App. 511 (1993). There, the Appellate Court held that an owner of land in the same zone as that to which the amendment applied was aggrieved, because personal rights were affected. Id., 514. On that basis, Roncari presumably would be aggrieved in this case, because its property is in the same zone as that eligible for the special permit. See also Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 374, 376 n. 3 ("As owners of land in zone B, the plaintiffs are aggrieved parties. See General Statutes 8-8(b); Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502-03, 264 A.2d 566 (1969).")
The standards of classical aggrievement have been stated often. For example:
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [ supra, 193 Conn. 65] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . Light Rigging Co. v. Dept. of Public Utility Control, [ 219 Conn. 168, 173, 592 A.2d 386 (1991)]." (Citation omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 234 Conn. 638.
Harris v. Zoning Commission, 259 Conn. 402, 410-11 (2002).
It seems analytically possible that one would not be automatically aggrieved by a zoning amendment affecting one's own zone if the range of allowed uses were increased rather than decreased. That position has not been advanced by any party, however, and I don't address it further.
In Cole, however, aggrievement simply by being in the same zone was not pled. The court examined the pleadings and the facts and noted that it was pled that the plaintiff's property abutted land sought to be used as a sawmill, which was to be allowed by the amendment in issue. Here, the plaintiff has alleged that it is statutorily aggrieved because it owns property within 100 feet of land directly the subject of the amendment and because it owns property in the same zone. Although the probability of the adjoining property's actual use as a sawmill in Cole is probably greater than the probability in this case that the adjoining property will actually be used for valet parking, the test for aggrievement is not certainty. Rather, a possibility will suffice. See Harris, supra; Light Rigging Comnany, supra.
But see Sheridan v. Planning Commission, 159 Conn. 1, 10-14 (1969), where a plaintiff did not have standing to contest a regulation creating a floating zone when the zone had not yet "landed" by legislative action. It certainly could be argued with some plausibility that a zone which is still floating might be analogous to the creation of a right to a special permit which has not yet been granted or, so far as we know, requested. Partly because a special permit must at least in theory, be granted if the applicant satisfies the applicable conditions, I find that the considerations of Cole still prevail.
In Cole, our Supreme Court held that the circumstances suggested that the plaintiff was aggrieved; there was sufficient actual controversy to support justiciability. I find that nearly identical circumstances are present here, and the circumstances here are stronger in one sense because ownership in the same zone has been pled. The plaintiff is, then, aggrieved for the purpose of the appeal.
II. Uniformity
Roncari claims the amendment violates the requirement of uniformity, as set forth in § 8-2(a) of the General Statutes:
. . . All such (zoning) regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission . . .
The plaintiff claims that the provisions that narrow the applicability of the amendment only to properties on Rte. 75 and only to parcels in existence as of October 1, 2001, create an impermissible inequality of treatment within a zone. The question again is a close one, and it is resolved in large part by recognizing legislative prerogatives in establishing standards for the issue of special permits.
On the surface, there certainly is a uniformity issue. In Vesekis v. Bristol Zoning Commission, 168 Conn. 360 (1975), for example, the issue was whether requiring a buffer strip on one particular property within a zone violated the uniformity clause, and the Supreme Court held that the provision did violate the clause:
The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike with provision for relief in cases of exceptional difficulty or unusual hardship by action of the zoning board of appeals. General Statutes 8-6; Florentine v. Darien, 142 Conn. 415, 424, 425, 115 A.2d 328. To require by zoning regulation a buffer strip between one zone of a particular classification and another zone of a different class in one specific instance and not in other instances when zones of these two zone classifications abut clearly violates the statutory uniformity requirement and is exactly the arbitrary and discriminatory use of the police power which the statute was designed to prevent. See 1 Anderson, American Law of Zoning 3.13, 5.17; Basset, Zoning, pp. 51-52.
Veseskis v. Bristol Zoning Commission, supra, 360.
A critical distinction exists between zoning actions which create differences within a zone without legislative sanction, and regulations which allow certain uses within a zone subject to certain legislatively prescribed conditions. The former constitute impermissible nonuniformity; the latter, typically in the form of procedures such as floating zones or the special permit procedure, are permissible in many circumstances, Summ v. Zoning Commission, 150 Conn. 79 (1962). A similar distinction was discussed in Harris v. Zoning Commission, supra, 431:
In reaching our conclusion in Veseskis, that a regulation affecting only one parcel of land, and not affecting other similarly situated parcels, was violative of the statutory requirement of uniformity, we stated that "[t]he obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike with provision for relief in cases of exceptional difficulty or unusual hardship by action of the zoning board of appeals." Id., 360. In the present case, the zoning commission's amendment applies to all parcels of land in residential zones throughout the town. It affects, however, only those parcels that have the features that it has excluded from the calculation of minimum lot area. Thus, parcels that contain wetlands, watercourses or slopes greater than 25 percent will ultimately require more overall land to meet the minimum lot size requirement than parcels without these features. We conclude, however, that the fact that the amendment has this differing effect on parcels of land throughout the town does not render its application inconsistent or unequal.
The thrust of the statutory requirement of uniformity is equal treatment. See, e.g., Kaufman v. Zoning Commission, supra, 232 Conn. 147; Veseskis v. Zoning Commission, supra, 168 Conn. 360. It is undisputed that, although the amendment ultimately has a differing effect on parcels of land depending on the presence and amount of wetlands, watercourses and slopes greater than 25 percent it is applied to every parcel within its purview consistently and equally. We conclude, therefore, that the trial court properly determined that the amendment does not require different minimum lot sizes, and, therefore, does not violate § 8-2(a) in this respect.
The legislature, then, has specifically provided several methods of allowing some flexibility to otherwise Euclidean zoning principles. The methods include floating zones and special permits. See generally Tondro, Connecticut Land Use Regulation 73-76 (1992). Exceptions have been variously explained. For example, in Sheridan, supra, The Supreme Court stated:
A floating zone is a special detailed use district of undetermined location in which the proposed kind, size and form of structures must be preapproved. It is legislatively predeemed compatible with the area in which it eventually locates if specified standards are met and the particular application is not unreasonable. Chatham Corporation v. Beltram, 243 Md. 138, 149, 220 A.2d 589; 2 Anderson, American Law of Zoning 12.11. It differs from the traditional "Euclidean" zone in that it has no defined boundaries and is said to" float" over the entire area where it may eventually be established. Bigenho v. County Council, 248 Md. 386, 391, 237 A.2d 53.
While the concept of a floating zone is similar to the established power of a zoning board to grant special exceptions, the two types of regulation may be distinguished. The special exception is the product of administrative action, while the floating zone is the product of legislative action. 1 Anderson, American Law of Zoning 5.16. Further, if a landowner meets the conditions set forth for a special exception, the board is bound to grant one, but in the case of a floating zone discretion is maintained and additional limitations may be imposed — more control is retained by the zoning board because it is acting legislatively. "The Connecticut Law of Zoning (Part A)," 41 Conn. B.J. 262, 293.
Sheridan v. Planning Board, 159 Conn. 1, 16 (1969).
Special permits may be granted only according to standards which are legislatively prescribed but are granted administratively. If there is to be unequal treatment within a zone, as defined by legislative action, the administration may not permissibly be left to unbridled discretion of the agency. Compare Bartsch v. Planning Zoning Commission, CT Page 885 6 Conn.App. 686, 690-91 (1986), with Pleasant Valley Neighborhood Association v. Planning Zoning Commission, 15 Conn.App. 110, 113-16 (1988). The special permit process recognizes that some uses may be desirable in certain zones, but conditions may be imposed to mitigate undesirable side effects. Tondro, supra, 178; Malafronte v. Planning Zoning Board, 155 Conn. 205, 209-10 (1967); Summ v. Zoning Commission, supra.
The deference to be accorded to planning and zoning commissions, especially when acting in their legislative capacities, is considerable. See, e.g., West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 512-13 (1994); Harris, supra, 415; Fenn v. Planning Zoning Commission, 24 Conn.App. 430, 434 (1991); Summ, supra, 89. I find in the circumstances of this case that the conditions which limit application only to specified properties within the business zone are adequately defined and, according to the record, are based on the realities of the situation as it existed. The discretion to grant any special permit is limited. It may well be that an entirely new zone, or perhaps a floating zone, may accomplish the same desired result. See Langer v. Planning Zoning Commission, 163 Conn. 453 (1966). Reasons were stated in the record for the restriction, in that the commission was clearly trying to balance the need to service the airport with the desire to foster appropriate and tax-producing uses. I conclude that the amendment complies with § 8-2(a) of the General Statutes.
The action of the commission in this case is functionally similar to the creation of a new zone. Had that option been chosen, there would be no substantial issue regarding uniformity. See Langer, supra.
The provision that only owners of lots in existence as of October 1, 2001, are eligible to apply for the special permit allowing valet parking is similarly within the legislative discretion of the commission. There are a number of means of limiting the number or density of uses which are deemed to the legislative authority to be acceptable only in moderation. Permitted uses may, for example, be prohibited by regulation, such that pre-existing uses are nonconforming and thus limited. Distances between uses can be established. Limiting the number of apartment units in a zone was inferentially approved in DeMaria v Planning Zoning Commission, 159 Conn. 534 (1970); see also Zelvin v. Zoning Board of Appeals, 30 Conn.Sup. 157, 165-66 (1973). The condition which has the effect of limiting the number of permits is not impermissible.
III. The Zoning Board of Appeals CT Page 886
The provision purporting to oust the zoning board of appeals of the power to consider variances quite clearly violates statutory requirements. See § 8-6 of the General Statutes; Zoning Board of Appeals v. Planning Zoning Commission, 27 Conn.App. 297, 303 (1992). The provision, however, is severable, in light of Chapter XVI of the Town of Windsor Locks' Zoning Regulations. See Langer v. Planning Zoning Commission, supra, 459. I find, then, that the appeal is sustained as to that provision, but that it is severable.
IV. Notice Requirements
The remaining question is whether the notice provisions regarding the proposed amendment were followed and, if not, whether the amendment is, as a result, invalid. Section 8-3(a) of the Connecticut General Statutes provides:
. . . Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, but, in the case of a district in the offices of both the district clerk and the town clerk of the town in which such district is located, for public inspection at least ten days before such hearing, and may be published in full in such paper . . .
The record reveals, and the parties agree, that publication was appropriately accomplished in regard to the first public hearing, which was simply continued. There is no record of a copy of the proposed amendment's having been left for inspection at the town clerk's office prior to the first hearing. There was no separate newspaper publication regarding the continued hearing, but there is evidence of a copy of the proposed amendment's having been left at the town clerk's office prior to the second hearing.
The first public hearing was scheduled to be held on July 9, 2001. Notice of the proposed amendment was published in the Journal Inquirer on June 28 and July 5. At the July 9 meeting, the hearing was continued to August 13, 2001. There is evidence by inference that a copy of the proposed amendment was made available for inspection at the town clerk's office as of July 24, 2001. Notice that the hearing had been continued also was published in the Journal Inquirer on July 18, 2001. The public hearing was formally opened on August 13, continued to September 10, and the commission's vote occurred on November 13, 2001.
The evidence is somewhat circumstantial. A copy of the proposed amendment was located in the files of the attorney for the applicant. The copy was dated by the town clerk, who, in an affidavit, averred that the writing was his. In his affidavit, the clerk also stated that his practice was to hold such copies only until the meeting or hearing was held, and the copies would then no longer be retained. No extrinsic record was kept of the document's having been available for inspection.
Compliance with the notice provisions of § 8-3 is mandatory:
"Compliance with the statutory procedure [of 8-3(a) is] a prerequisite to any valid and effective change in zonal boundaries." State ex rel. Capurso v. Flis, 144 Conn. 473, 481, 133 A.2d 901 (1957), citing Couch v. Zoning Commission, 141 Conn. 349, 356, 106 A.2d 173 (1954), and Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 250, 83 A.2d 201 (1951). In Scovil v. Planning Zoning Commission, 155 Conn. 12, 14-15, 230 A.2d 31 (1967), the Supreme Court stated that if the evidence supported the trial court's conclusion that neither a copy of the proposed zone change nor a zoning map was filed in the town clerk's office prior to the public hearing, then "the defect was jurisdictional and the zoning regulations purportedly adopted were invalid."
Bombero v. Planning Zoning Commission, 17 Conn.App. 150, 154 (1988).
Though mandatory, the notice procedure is not entirely inflexible, so long as the intent of the legislature that the citizenry be informed is fulfilled. In Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41 (1972), for example, the Supreme Court held that the legislative purpose was given effect when the two mandated notices were published in different newspapers, rather than both in the same newspaper. In Lauer v. Zoning Commission, 220 Conn. 455 (1991), the plaintiff was not entitled to complain about lack of notice to an adjoining town in violation of § 8-3h of the General Statutes, because notice required by that section was personal to the adjoining town rather than jurisdictional.
In any event, newspaper publication of the proposed amendment prior to the first public hearing is agreed to have been sufficient. As to whether the plaintiff has sustained its burden of showing lack of lodging of the proposed amendment in the town clerk's office for inspection prior to the hearing, I defer to Scovil v. Planning Zoning Commission, 155 Conn. 12, 19 (1967). There, there was no evidence that the required lodging had been accomplished, and the trial judge had found the jurisdictional requirements had not been fulfilled. The trial court relied, to a degree, on the presence of the post-hearing filings and the absence of pre-hearing filings for a inference that pre-hearing filings had not been made. The Supreme Court, stressing the absence of any requirement that any pre-hearing filings be retained, reversed for several reasons: because the plaintiff has the burden of proof, no one complained at the time of the hearing that the amendment had not been available for inspection, and there is a presumption of regularity on the part of the clerk's office, the absence of such a record could not support the inference of noncompliance. The same factual situation exists here, and I find that the plaintiff has not sustained its burden of proof.
If the notice provisions were satisfied as to the first hearing, and the matter was continued on the record to a date the following month, then the first notice provides adequate notice for action taken at the second hearing. See Buck v. Stonington Planning Zoning Commission, 1994 Ct.Sup. 734 (1994); Carlson v. Fire District Committee, 2002 Ct. Sup. 2001; cf. Lauver v. Canterbury, 60 Conn.App. 504 (2000) (where action at the second hearing was on a proposal considerably different from the proposal made available for inspection prior to the first hearing, and the item did not even appear on the agenda at the hearing following the first notice, notice for the first hearing did not satisfy the notice requirements for the second hearing).
The plaintiff also claims that the notice of the final action of the commission was inadequate. I find that the notice substantially complied with statutory requirements, especially in view of the function of the notice. See Scovil v. Planning Zoning Commission, supra, 15; Dupont v. Planning Zoning Commission, 163 Conn. 213, 218 (1968). None of the purposes of the final notice were thwarted in the circumstances presented. See, e.g., Sharp v. Zoning Board of Appeals, 43 Conn.App. 512 (1996); Bridgeport Bowl-O-Rama, Inc. v. Zoning Board, 195 Conn. 276 (1985); Mohican Valley Concrete v. Zoning Board of Appeals, 75 Conn.App. 45 (2003).
The appeal, then, is sustained only as to the clause purporting to oust the zoning board of appeals of jurisdiction and is dismissed as to the other claims. Judgment shall enter accordingly.
Beach, J.