Opinion
CV146024989
07-21-2016
Edward W. Senk v. Zoning Commission of the City of Waterbury et al
UNPUBLISHED OPINION
OPINION
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff is a resident of the City of Waterbury and owns property located at 530 Highland Avenue in the City of Waterbury. The plaintiff has appealed the action of the Zoning Commission of the City of Waterbury (hereinafter Commission) in approving a special permit and site plan approval for the installation of a concealed commercial wireless telecommunications facility at 531 Highland Avenue in the City of Waterbury. The property is owned by the defendant Waterbury Masonic Temple Corporation. The application was submitted by Cellco Partnership d/b/a Verizon Wireless (" Cellco") to allow the use of the building on the property to install an antenna for the telecommunications as well as the generator and equipment for the operation of the system. The co-defendant, Masonic Temple, is the owner of the property and submitted an authorization for Cellco to apply for approvals to install telecommunications equipment within the facility owned by the Masonic Temple at 531 Highland Avenue.
The plaintiff submitted a Brief in Support of his appeal dated September 1, 2015. The defendant Cellco submitted a Corrected Brief in Support of its objection to the Appeal dated May 3, 2016. The defendant Waterbury Masonic Temple adopted the Brief of the defendant Cellco on October 30, 2015. The defendant Waterbury Zoning Commission also adopted the brief of Cellco. The defendant, Zoning Commission, filed a return of record which included the applicable Zoning Regulations, the transcript of the public hearing with the decision of the Commission for the court's review in the appeal.
The court conducted an aggrievement hearing and argument on the appeal on May 2, 2016.
II. FACTUAL BACKGROUND
The defendant, Cellco Partnership d/b/a Verizon Wireless (Verizon), filed an application with the Zoning Commission seeking a Special Permit and Site Plan Application approval pursuant to Sections 10.20, 11.04 and 11.05 of the Waterbury Zoning Regulations to establish a Wireless Communications Facility (" WCF") concealed inside the Waterbury Masonic Temple building at 531 Highland Avenue in Waterbury. (ROR Attachment 1.) The property is located in a RM zone. The defendants contend the zone permits the proposed telecommunications facility subject to a special permit approval. The property which is to be utilized for the telecommunications equipment contains a building which was utilized as a former church and now a Masonic Temple and a former rectory which now serves as a social service agency. (ROR #5c July 23, 2014 Transcript at 2.) The plan submitted for approval places the antennas within the bell tower of the church building. It includes adjustments to the panels of the tower but leaves the tower visually the same. Also a generator is to be installed within the church building basement by the applicant and an equipment room will be located within the choir area of the church. The specific description of the project presented to the Zoning Commission states that: " The proposed WCF will consist of nine (9) panel antennas located inside the existing bell tower structure of the Masonic/Temple building. The antennas will be located behind Radio Frequency (" RF") transparent louvers, which will screen the antennas from view outside the structure. Radio equipment associated with Cellco's antennas and an emergency back-up generator will be located inside the Masonic Temple building." (ROR Attachment 2.)
The application was scheduled for a public hearing on May 28, 2014 but was continued to June 25, 2014 at the request of the applicant and thereafter continued one more month at the defendants' request. The applicant, Cellco (Verizon) presented its application to the Zoning Commission at its public hearing on July 23, 2014. At the completion of the public hearing the Commission voted unanimously to approve the Special Permit and the Site Plan Application.
The Notice of the Decision of the Commission was published in the Waterbury Republican-American on August 2, 2014. This appeal was filed on August 18, 2014.
The plaintiff Edward Senk owns property at 530 Highland Avenue which is adjacent to the northern property line of the subject property. The bell tower which is the proposed site for the telecommunications equipment is approximately fourteen feet from the property line of the plaintiff. The plaintiff filed this administrative appeal on August 18, 2015 alleging twelve separate allegations in support of the claim that the Commission's approval was arbitrary, capricious and an abuse of discretion. (Complaint, ¶ 116(a)-(l)).
The plaintiff and the public in opposition argued that the wireless communication facility would negatively impact the health of the neighborhood as a result of the RF emissions but as stated in the public hearing and in following the Federal Telecommunications Act, this argument is not appropriate for consideration by the Commission and it appears to have been abandoned.
III. DISCUSSION
A. AGGRIEVEMENT
Pleading and proof of aggrievement are jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). Aggrievement falls into two basis categories--statutory and classical. Statutory aggrievement exists by virtue of legislative fiat, rather than through an analysis of the facts for a particular case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (1986). One claiming statutory aggrievement must show that a particular statute grants standing to pursue an appeal, without the necessity of demonstrating actual injury based on the particular facts at hand. Pond View, LLC v. Planning & Zoning Comm'n, 288 Conn. 143, 156, 953 A.2d 1 (2008).
Classical aggrievement, on the other hand, requires a party to satisfy a well-established two-fold test: (1) the party claiming to be aggrieved must demonstrate a specific personal and legal interest in the decision appealed from, as distinguished from a general interest such as concern of all members of the community as a whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action which produced the appeal. Cannavo Enterprises v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984). Section 8-8(a)(1) of the General Statutes defines " Aggrieved Person." The statute reads: " (1) 'Aggrieved Person' . . . includes any person owning land that abuts or is within one hundred feet of any portion of the land involved in the decision of the board."
At the hearing before this court it was demonstrated that the plaintiff, Edward Senk is the owner of property at 530 Highland Avenue which abuts or is within 100 feet of the subject property. Therefore, the plaintiff Edward Senk is statutorily aggrieved by the decision of the Zoning Commission of the City of Waterbury.
Because the plaintiff has demonstrated statutory aggrievement, it is not necessary to consider the claims of classical aggrievement.
B. APPLICATION APPROVAL FOR SPECIAL PERMIT AND SITE PLAN
The plaintiff filed his appeal of the decision of the Zoning Commission contending there are eleven reasons to find that the decision was improper and mandating that the court sustain the appeal. The plaintiff has addressed three allegations within the appeal and provided argument regarding the specification allegations that the defendant, Commission, did not confirm conformance with the Special standards specified in Section 11.04.06(1)(2) and Section 10.20.03(1) of the Zoning Regulations of the City of Waterbury. In particular, the plaintiff contends that the application does not satisfy the limited gross floor area, the height criteria of Section 10.20.03, and also failed to conform to Section 11.04.06(i)(2) and (4) of the Regulations.
The regulations of the City of Waterbury permit the use as a Wireless Facility pursuant to Section 4 under " Permitted Uses, " which lists the Wireless Communications Facilities as a Special Permit in a RM Zone within the City of Waterbury. The defendants' application for the special permit for the WCF was accompanied with a very specific outline of the Project Description and Compliance Statement which addressed the special permit standards required pursuant to the regulations for allowing the WCF within a RM district. (ROR 1, Attachment 2.)
The Regulations Section 11.04.06(i)(2) requires that in approving a Special Permit the applicant shall conform with the Special Use Standards that are set forth in the Regulations at Section 10.20.03. It is the interpretation of this section of the regulations that has been challenged by the plaintiff.
Section 10.20.03(i) of the Regulations provides: " Wireless and Accessory Wireless Communications Facilities shall comply with the following Special Use Standards, as applicable. (i) Each building or other structure used for WCF shall not contain more than seven hundred and fifty (750) feet of gross floor area nor be more than twelve (12) feet in height, and shall be set back at least fifty (50) feet from an adjacent property used or zoned for residential use . (Emphasis Added); (ii) Communication towers shall not exceed a height of one hundred feet and sixty (160) feet, shall be a monopole, and shall be located at a minimum of one hundred and sixty (160) feet or the height of the tower from the property line of the nearest residential property, measured from the base of tower to the property line. This tower set back provision may be altered based upon engineering documentation prepared by a professional engineer demonstrating to the Approval Authority's satisfaction that the proposed design shall prevent collapse of the tower off of the site . . ." The plaintiff argues that this section of the regulations would preclude the placement of a wireless communication system because the gross floor space of the Masonic Temple exceeds the 750 feet which is permitted for the building or structure in accordance with this section and also fails to satisfy the 160 feet from the property line. The Commission and defendants argue that the special permit sections which are cited and relied upon by the plaintiff do not apply to the instant application because the building housing the equipment is not a standalone building and thus they have the discretion to review and approve the application. In support of his argument the defendants contend that the Commission has acted similarly in prior applications in which there was no construction of a standalone building but incorporation into the present existing structure. Thus, the defendant Commission argues that Section 10.20.03(i) which limits the gross floor area and the height and set back does not apply to the instant application. The plaintiff counters that the Regulations Section 2.01.02 relating to the construction of the regulations provides that the use of the word " shall" indicated a mandatory and not discretionary condition. Thus, plaintiff concludes that the Section is mandatory. This view of the regulations ignores a common sense application of the regulations to the matters which come before the Commission and mandates application of a section which in reality is not part of the application. In following the argument of the plaintiff, a WCF would always require a stand-alone building and the placement in other structures would never be capable of satisfying the zoning criteria. This view ignores the discretionary review by the Commission to a use that is permitted.
A special permit allows a property owner to use his property in a manner which is expressly permitted by the zoning regulations. Kobyluck v. Planning & Zoning Comm'n, 84 Conn.App. 160, 169-70, 852 A.2d 826 (2004). The term " special permit" and " special exception" have the same meaning and may be used interchangeably. Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 (1962). Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover we have noted that the nature of special exception 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 residential character of the neighborhood. Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Citations omitted; emphasis in original; internal quotation marks omitted) A. Aiudi & Sons, LLC v. Planning & Zoning Comm'n, 267 Conn. 192, 204, 837 A.2d 748 (2004).
The Zoning Commission's authority to issue a special permit is derived from § 8-2 of the General Statutes. The authorizing statute does not permit a commission, in the exercise of its discretion, to vary the application of its regulation on a case by case basis. MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 428-29, 77 A.3d 904 (2013).
When ruling upon an application for a special permit, a zoning commission sits in an administrative, rather than in a legislative or quasi judicial capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1988). Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977). The commission has no independent discretion beyond determining whether an application, as presented satisfies the standards set forth in the regulations. Quality Sand & Gravel, Inc. v. Planning and Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999).
Sitting in an administrative capacity, a zoning commission has a right to interpret its regulations, and to determine whether a particular regulation applies to a given situation, or to determine whether general standards concerning health, safety and welfare, as controlled by the regulations, have been satisfied, Irwin v. Planning & Zoning Commission, supra, 627. However, the discretion exercised must be controlled by fixed standards, applying to all cases in a like manner. Sonn v. Planning & Zoning Commission, 172 Conn. 156, 163, 374 A.2d 159 (1976).
Although a special permit enables a property owner to use his property in a manner permitted by the zoning regulations, a permit must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique topographical conditions, traffic problems and neighborhood uses. Barberino Realty & Dev. Corp. v. Planning & Zoning Com., 222 Conn. 607, 612, 610 A.2d 1205 (1992).
In applying the law to the facts of a particular case, the commission is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the challenged action was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). On factual questions, a reviewing court cannot substitute its judgment for that of the municipal land use body. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992).
As noted above, the plaintiff originally alleges a litany of reasons in support of his position that the decision must be reversed but there are only three arguments which are properly briefed and require a review by the court. The first area of review is the argument that the defendants far exceeds the limited gross floor space for a WF because the building at issue exceeds 750 feet for gross floor space. This standard is interpreted by the zoning commission to apply to only new stand-alone buildings and not be a consideration if the WCF is contained in an existing building within the zone. The plaintiff concedes that the building and project area are more than 750 feet but argues that this regulation is not applicable to the instant application because it is being placed in a preexisting site and the site is not a standalone. The defendants are not constructing a new building but are utilizing the existing bell tower on the site. The plaintiff relies upon the case of MacKenzie v. Planning and Zoning Commission of the Town of Monroe, 146 Conn.App. 406, 77 A.3d 904 (2013), as controlling. The plaintiff argues that in following MacKenzie the defendants' position of interpretation of the regulations cannot allow them to interpret the regulations for a specific application but the regulations are applied evenly across the board. The MacKenzie action is distinct from the present case. In MacKenzie the defendant was involved in the construction of a new structure with completely new and necessary parking that could not satisfy the set back. The Commission agreed that the regulation for the parking lot applied but ignored the regulation in an arbitrary fashion and waived any requirement to satisfy the regulations for this new use. In the instant application, the Commission after testimony from the City Planner determined that the gross floor space applied only to a standalone building and that the regulation had interpreted the regulation in that manner on many occasions. There was no arbitrary application or non-application of the regulation as it may be in the instant application. It is entirely reasonable for the Commission to have found that there is a difference between the use of the structure which has been in the neighborhood versus the construction of what may be a new intrusive tower next to a residential property that may certainly create a public obstruction and devalue the property. However, in this application there is no new structure that may interfere with the adjacent property. The defendants argue that the Carlson v. Fire District Commission, Zoning Commission of Watertown, No. CV 990154545S, 002 241441, (Conn.Sup.Ct. Feb. 5, 2002) , controls and permits the installation of the antennas within the existing church without requiring the height and floor coverage restrictions. The Carlson case follows the very same rationale as noted in this action in allowing a distinction between the use of an existing structure and engaging in new construction. The decision of the Commission to follow the long accepted interpretation of Section 10.20.03 to apply to the stand alone buildings for the Wireless Communication Facility was not arbitrary, capricious, or an abuse of discretion based upon the testimony elicited in the public hearing and thus the finding of the Commission that such a permitted use satisfies the special permit standards does not violate the regulations.
The plaintiff also argues that the Commission failed to provide stated reasons for the approval as part of its record of the approval of the application. " Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Bd. of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). The Commission stated in its decision that " the application was in accordance with the zoning regulations of the City of Waterbury." (ROR 9.) In addition to the reason for the approval the Commission included discussion on the record of the conditions and there was testimony from the officials of the City as well as the applicants which addressed the conditions relevant to the special permit. The court reviewed the record of the public hearing which offers abundant testimony that supports the approval of the application. The record of the proceedings indicates that the testimony of the proponents of the application satisfied the concerns and conditions attached to a special permit. While not a direct issue for the Commission approval, the Commission heard testimony that addressed the public comments concerning the exposure from the RF frequency energy and exposure which are at levels less than 24% of the FCC safety criteria. As to the remaining conditions there was testimony from Mr. Centore as to the physical layout which includes placement in the bell tower of the antennas and the placement of a new generator also with the building. The testimony in opposition does not address deficiencies within a special permit but instead relate to the RF emissions. The consideration of the RF emissions are controlled and preempted by the Federal Telecommunications Act are not within the authority of the Zoning Commission. The connection of the RF emissions and the argument about decreased property values raised by some of the neighbors are unsubstantiated claims. The testimony of the applicant offers evidence and testimony contrary to the fears expressed by the public in opposition. The findings of the Commission are also based upon the testimony of the City Planner, James Sequin, who adequately explained the application of the regulations and in particular the placement of the equipment within the existing building and the tower that he relayed is appropriate stating, " . . . our past history has been it it's located in or on the building that it doesn't meet those requirements it was still approved. We would really be in a hard situation if we were to do anything other than--other than that." (ROR Transcript at 2.) This finding of a similar type of approval which is part of the record supports the position and findings of the Commission in approving this application. At the conclusion of the public hearing, the commissioners voted unanimously to approve the application noting that the presenter of the application had addressed the issues of real estate appraisals and the noise and location of the generator. The commissioners clearly recognized the limited oversight and their lack of authority to review the emissions. The unanimous conclusion is supported by the record. There is no indication in the record that would support a finding that the decision was arbitrary and capricious. Thus, a search of the record provides ample support for the finding.
The FCC regulations preempt State and local authority over the Radio frequency emissions so long as the applicant demonstrates that they comply with FCC standards. This was presented by Ronald Peterson. Therefore, the issue of public safety and health is a non-issue in this regard.
This is contrary to some public testimony regarding an outside placement. Only condensing units are placed outside of the existing building.
IV. CONCLUSION
For the foregoing reasons, the appeal is dismissed.