Opinion
NNHCV166060514S
01-25-2017
Rosemary Costanzo Trust, Settled December 12, 1991 et al. v. Planning & Zoning Commission Town of Branford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Angela C. Robinson, J.
Rosemary Costanzo Trust, Settled December 12, 1991; and Rosemary Costanzo, Trustee, (the Plaintiffs) bring this action to appeal the approval of a site plan by defendant Town of Branford Planning and Zoning Commission (PZC) for the applicants, defendant Metro Star Properties, LLC (Metro Star) and defendant 1 Church Street, LLC (1 Church Street). The site plan was for a large, mixed-use commercial and residential development on Meadow Street in Branford. The parties filed trial briefs and presented evidence during a court-side trial on January 17, 2017. In addition to the evidence presented at trial, the court reviewed and considered: the Amended Complaint (#101); The Return of Record (#103); the Answer to the Amended Complaint (#105); the Plaintiffs' Brief (#106); Defendant Metro Star's Brief (#107); Defendant 1 Church Street's Brief (#108); Defendant Town of Branford's Brief (#109); and the certified copy of the audio recording of the November 5, 2015 hearing forwarded from Town Counsel.
Neither the PZC nor 1 Church Street filed substantive briefs. Rather, they adopted the arguments set forth in the Metro Star's brief.
By way of background, the applicants submitted Planned Development District (PDD) and Master Plan for a mixed-use redevelopment of the old Atlantic Wire factory site located in Branford, Connecticut. Those plans were approved on February 5, 2015 and were not appealed. The applicants then filed a site plan in accordance with the final approval of the PZC for two hundred and five (205) units of new housing, twelve thousand (12, 000) square feet of commercial use, and ten thousand (10, 000) square feet of restaurant use. The site plan, which was filed in accordance with the PDD and the Master plan was approved on January 21, 2016.
The plaintiff Trust owns an abutting parcel of land and filed a timely appeal pursuant to General Statutes § 8-8 et seq. Therefore, this court finds that the plaintiffs are aggrieved parties. The plaintiffs request that this court overturn the PZC's decision approving the site plan application. For reasons more fully articulated, the court finds that the plaintiffs have not met their burden of proof with regard to their claims, and dismisses this appeal.
Section 8-8(a)(1) provides in relevant part: " 'Aggrieved person' means a person aggrieved by a decision of a board . . . In the case of a decision by a . . . combined planning and zoning commission . . .'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiffs put forth two basic arguments. First, the plaintiffs argue that the PZC failed to provide timely notice of the public hearing, and therefore lacked jurisdiction to act on the site plan application. Second, the plaintiffs contend that the PZC acted illegally, arbitrarily and abused its discretion by relying upon a flawed traffic study to approve the site plan.
The plaintiffs' brief reference a third argument, namely that one of the Commissioners improperly participated in the hearing when she had a conflict of interest. However, the plaintiffs abandoned this claim at trial, and agreed to waive it.
Throughout their Brief and during legal argument in the trial, the plaintiffs have consistently alluded to " behind the scenes" improper dealings by the Board and the applicants, as well as conflicts of interest. However, the plaintiffs did not conduct any discovery regarding this, nor did they offer admissible evidence regarding these allusions. For that reason, the court need not address issues that are not embraced within the Return of Record.
In response, the defendants argue that the public hearing on the application was commenced on November 5, 2015, and therefore, timely notice was provided to the public. Second, the defendants assert that because there was no dispute, neither between the two traffic experts, nor with any of the other non-speculative evidence that the traffic plan conformed with the regulations, the PZC was required, by law to approve the site plan.
The law in Connecticut is that a trial court may grant relief in an appeal from a decision of an administrative agency only where the agency has acted unreasonably, illegally, arbitrarily or has abused its discretion. See Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993). Thus, the court's role is to determine whether the record reasonably supports the conclusion reached by the agency. DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994). " The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." Timber Trails v. Planning & Zoning Commission, 99 Conn.App. 768, 783, 916 A.2d 99 (2007). " The burden of proof is on the plaintiff to demonstrate that the Board acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
" In determining whether a zoning commission's actions were reasonable, [the trial court will] examine whether there was substantial evidence in the record to support the commission's determination . . . The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough 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 . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities . . . a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . . At issue in all of these matters . . . is that there was some onus on the commission not to act arbitrarily, and the principal way in which courts decide whether an agency's decision is arbitrary is to determine whether there is substantial evidence in the record to support that decision." (Citation omitted; internal quotation marks omitted.) Loring v. Planning & Zoning Commission, 287 Conn. 746, 764, 950 A.2d 494 (2008). " In appeals from administrative zoning decisions . . . the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by 'substantial' evidence in that record." (Internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001).
I.
The plaintiffs argue first that the PZC failed to provide timely notice of the public hearing, which the plaintiffs contend did not occur until December 3, 2015. There is no dispute that legal, and timely notice was given for a November 5, 2015 hearing. (See, Plaintiffs' Brief, p. 11.) All the property owners within 100 feet of the Subject Property were given notice on October 15, 2015. Further, notice was published in two newspapers on October 22, 2015 and October 29, 2015. The dispute is whether the public hearing was opened and commenced on November 5, 2015.
Both the minutes for the November 5, 2015 hearing and an audio recording of the meeting reflect that the Commission met on November 5, 2015; and that the Chair of the PZC informed the attendees that neither the applicant requested the hearing be continued in order to address some questions raised by the Town engineer. The Chair announced that anyone who wanted to make comment that evening was welcome to do so, but that he suggested comments wait until after the application is formally presented. The Chair used the words " the hearing is opened" and noted that no one had requested to speak, and then continued the hearing to December 3, 2015.
The plaintiffs argue that, even though the Chair said, at one point, that the hearing was opened on November 5, 2015; and even though the minutes reflected that the hearing was opened, the hearing was not " legally" opened until December 3, 2015. The plaintiffs rely upon statements of the Chair that the opening of the public hearing would be postponed, to support this assertion. (Audio Tape, 1st Recorder). He also refers to the November 4, 2015 letter from the applicant, requesting " to postpone the opening of the public hearing . . ." (ROR, Exh #17.)
The plaintiffs state in their brief that " [a]t the start of each of the November 5, 2015, November 19, 2015 and December 3, 2015 meetings, the chairman began by stating the elements of a public hearing. Those elements are (1) the Applicant's presentation, (2) the comments and questions of the PZC, and (3) public comments and questions." (Plaintiffs' Brief, p. 12.) These quoted statements, however, do not provide a citation, and a review of the Transcripts included in the Return of Record do not provide a memorialization of these comments. The audio recording of the November 5, 2015 meeting does corroborate that the Chair explained to those, who were not familiar with the process, the general format for a public hearing. (Audio Tape, 1st Recorder.)
Perhaps more importantly, though, the plaintiffs fail to provide any legal authority for their proposition that the three elements they identify must be present in the same meeting in order for a " public hearing" to be validly opened. As the ones raising the issue of defective notice, the plaintiffs bear the burden of proving this claim. See, Nazarko v. Zoning Commission, 50 Conn.App. 517, 520, 717 A.2d 853, cert. denied, 247 Conn. 941, 723 A.2d 318 (1998).
They cite General Statute, section 8-7d and Branford Zoning Regulations sections 9. and 9. to support their argument that notice was not properly provided for the public hearings in this matter.
General Statute, section 8-7d provides in pertinent part: " notice of hearing shall be published in a newspaper having a general circulation in each municipality where the land that is the subject of the hearing is located at least twice . . . in addition to such notice, such commission . . . may, by regulation, provide for additional notice."
Branford Zoning Regulations, section 9.14 provide in pertinent part: " Notices of public hearings shall be published in accordance with applicable state law. At the time of adoption of this Section, CGS section 8-7d required publication of notices in the following circumstances and manner: . . . (2) Such notice shall be published at least twice at intervals of not less than two (2) days, the first not more than 15 days, not less than ten (10) days and the last not less than two (2) days before the hearing."
Branford Zoning Regulations, section 9.14G provides in pertinent part: " for all applications that will require the Commission to hold a public hearing . . . the applicant shall mail written notice to the . . . (1) owners of all parcels of land that are the subject of this application. (2) All persons owning property of which is within 100 feet of the land that is the subject of the application."
Our Supreme Court has held that General Statutes " section 8-3 does not require the publication of additional notices when the public hearing is continued or rescheduled; the statute is silent with regard to notice when the hearing is postponed." Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 73, 912 A.2d 1008 (2007). Additionally, various trial courts, confronted with the issue of adequacy of notice when a hearing is not completed on one date, have concluded that notice for the first hearing date is sufficient. Ahuja v. Zoning Board of City of Stamford, Superior Court, judicial district of Hartford, Docket No. CV LND 126035945 (January 4, 2013, Berger, J.) [55 Conn.L.Rptr. 397, ] (Addressing challenges to a Zoning Board's continuation of public hearings the court in Ahuja, concurred with conclusions of other courts that continuation of a hearing date does not require additional notice.) These holdings support the conclusion that the notices for the November 5, 2015 hearing were sufficient for the subsequent hearings, whether one construes them as postponed or continued. And, the plaintiffs have not identified any cases in which a court found that a hearing was improperly opened, thereby requiring the publication of additional notice(s).
The court found no caselaw defining the required elements for a " public hearing, " as the plaintiffs assert them to be. Given that the plaintiffs' brief is absent case citations, the court concludes that plaintiffs' counsel was unable to find any legal precedent supporting his conclusion that the public hearing was not opened until December 3, 2015, either. Therefore, court finds that the Public Hearing was opened on November 5, 2015. Accordingly, the court concludes that notice was properly and legally given and the PZC had subject matter jurisdiction to proceed with Metro Star's site plan application.
II.
The plaintiffs next claim that the PZC acted illegally and arbitrarily by relying on a flawed Traffic Study. Specifically, the plaintiffs argue that Traffic Studies upon which the Commission relied failed to include significant information regarding how the traffic would affect the surrounding residences. Wilford Avenue, for instance, the street upon which the plaintiffs' property is located, is not mentioned in the traffic report at all.
The defendants respond that the Commission was required to approve the site plan because it complied with the Town's regulations and because the uncontested expert evidence approved of the traffic plan submitted for consideration.
Branford Town Zoning Regulations require that " [t]he Commission shall be concerned with the following objectives: 3. To ensure that traffic generated by the proposed use will not adversely affect the surrounding area, and will not disrupt the orderly movement of vehicles and pedestrians in the area."
In February 2015, the Commission approved the application to establish a PDD for the subject property. In so doing, the Commission made certain findings regarding the traffic study that was submitted in support of the application. The Commission concluded, after the February 2015 hearing that " the streets and drives will be suitable and adequate to accommodate anticipated traffic and projected development intensity will not generate traffic in such amounts as to overload the street system in the area." (ROR, Ex. 1(K).)
Applicant's expert, Steve Ulman, provided another traffic study dated September 29, 2015, and supplemental traffic study, revised November 11, 2015. (ROR, Ex. 2 and Ex. 28.) The Commission's expert, David Sullivan, reviewed the new studies and reported his findings during the January 7, 2016 hearing. Both experts opined that the site plan would not overly or unduly burden traffic in the area of the subject property.
The PZC acts in an administrative capacity when it acts upon a site plan application. Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12, 544 A.2d 152 (1988). " Site plan approval is directed to determining whether a particular plan conforms to existing requirements in the zoning regulations . . . [W]here a special permit is requested, it is used to determine whether the technical details of the plan conform to the specific requirements of the special permit and other zoning regulations." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 5:5, p. 187. " 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." General Statutes § 8-3(g). See also Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110, 682 A.2d 1073 (1996) (" The [commission] has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference"). However, " [i]n applying the law to the facts of a particular case, the [commission] 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." Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn.App. 79, 84, 868 A.2d 749 (2005). The PZC makes determinations of credibility. However, the PZC should consider the unanimity of the opinions of traffic experts, in making findings regarding the affect of a plan on traffic. See, Bethlehem Christian Fellowship, Inc. v Planning & Zoning Commission, 73 Conn.App. 442, 469-70, 807 A.2d 1089 (2002) (It was error for the Commission to conclude that the plan would adversely affect traffic, when both the applicant's expert and an independently retained expert agreed that the plaintiff's plan would have minimal effect on traffic safety and operation).
The primary faults the plaintiffs find with the PZC's holding is that it fails to consider, specifically, the street upon which the plaintiffs' property is located and because it fails to address other, future projects that might be approved in the area. The plaintiffs refer to the Traffic Study as " flawed" but do not identify an authority or expert that has voiced an opinion to support this conclusive claim. Instead, the plaintiffs assign the flaw because the report does not mention Wilford Avenue, which would be the one-way street to the north of the subject property. " How can the PZC justify its finding that the traffic generated by the proposed use of the incredibly dense Development will not adversely affect the surrounding area if the traffic report upon which it relies does not include information regarding the street and area directly bordering the Subject Property? Quite simply, it cannot. This omission of information is a fatal defect . . ." (Plaintiffs' brief, p. 15.).
The plaintiffs do not cite to caselaw, requiring the Commission to only rely upon or consider traffic studies which specifically reference all bordering streets. And, plaintiffs failed to raise this issue during the hearing.
Certainly, the Commission was aware of concerns relating to traffic expressed by residents from Wilford Avenue area. First, Robert Smith, Jr., the Executive Managing Director of Metro Star, testified that: " This summer we met with neighbors from the Wilford Avenue area, and while the conversation concerned mostly traffic issues, for the record we did however agree to the following . . ." (ROR, Exh 73, p. 3.) Additionally, residents who resided on Wilford Avenue testified. Those residents were, Bobby Costanzo, Maureen Gercken, and David Minicozzi. The PZC concluded that it had sufficient basis to vote and approve the plan, notwithstanding certain questions that were raised regarding the specific impact of traffic on Wilford Avenue, and the potential future Community House on Wilford Avenue.
Mr. Costanzo expressed concerns in two written letters about the traffic impact on Town Center historic district; and requested clarification about the volume of traffic on adjacent roads. ROR, exh. 74, p. 34.
Ms. Gercken testified: " . . . I don't know if anyone here lives in the center of town, but we live on Wilford Avenue and Wilford Avenue gets a lot of traffic because it's one way . . . So I'm asking for whatever you do with the plans that you take that in the back of your head the consideration that you're going to have for the people on Wilford Avenue . . ." ROR, exh 74, pp. 41-42.
Mr. Minicozzi brought up concerns about traffic on Church Street after the construction of " the new Community House that's going to come and be built at the end of Wilford Avenue." ROR, exh. 74, pp. 30-31.
While it appears that neither the Traffic Study, nor the testimony of either Traffic Expert directly addressed Wilford Avenue, the plaintiffs fail to present authority for the proposition that this renders the traffic evidence flawed. The plaintiffs did not present expert testimony or caselaw to support their argument. Instead, they urge this court to rely simply on the concerns raised by neighbors who owned property on Wilford Avenue and on representation of plaintiffs' counsel that the studies were flawed. This court cannot do that. In Bethlehem the court concluded that " comments of residents regarding the dangers of . . . additional trips . . . are based on speculation and do not rise to the level of substantial evidence." Supra, 73 Conn.App. At 472. Therefore, this court concludes they form an insufficient basis for the PZC to have denied the site plan application; the substantial evidence supported the PZC's approval of the plan.
[W]hile " traffic problems and related safety concerns can be a valid reason for a denial . . . there must be more than a traffic increase, and either traffic congestion or an unsafe road design at or near the entrances and exits from the site.' R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (2007) § 51:7, pp. 185-86." CMB Capital Appreciation, LLC v. Planning & Zoning Comm'n of the Town of N. Haven, 124 Conn.App. 379, 399, 4 A.3d 1256 (2010).
The Record clearly indicates that the PZC was aware of concerns about Wilford Avenue traffic, and that the PZC considered the facts presented to them to be sufficient. Without more, the court is compelled to accept the PZC's conclusions regarding traffic.
Related to the traffic claim, the plaintiffs argue that the failure of the Commission to take into account the " Branford Senior Center, which has been approved to be built directly next to the Branford Community Center" is fatal. (Plaintiffs' Brief, pp. 15-16.) Additionally, plaintiffs' counsel implied a sinister motive to this alleged failure. Again, the plaintiffs rely on conclusory language, without reference to legal authority or expert evidence.
" Taking all of the above into account, it becomes clear that this area will be riddled with young children and elderly folks, two classes of people that deserve extra consideration due to their need for additional safety precautions. The failure of the study to include information regarding these facilities renders the Decision of the PZC to approve the Application illegal, arbitrary, and/or in abuse of discretion." Plaintiffs' brief, p. 16.
References were made to the Community House, during the hearings, and the PZC's expert explained that it was not addressed because future projects are speculative. (ROR, Ex. 75, pp. 37-38.) The PZC accepted this representation. The plaintiffs have provided the court with no authority to reject the PZC's conclusion that the traffic expert was not required, by law, to address the traffic impact of future projects on the Site Plan it was currently considering.
III.
In conclusion, the court dismisses the plaintiffs' appeal because they failed to establish that the PZC lacked jurisdiction to consider the application in the absence of proper notice; and the Record supports the approval of the PZC of the site plan, as it relates to traffic issues.