Opinion
No. CV 07-4026673 S
December 23, 2008
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff Alan Vine appeals the decision of the Wallingford Planning and Zoning Commission ("Commission") granting site plan approval to his neighbor, the defendant Ilia Athan ("Applicant") to construct a 3,420 square feet commercial kennel in an RU-120 zone. The plaintiff asserts that the defendant Commission acted illegally, arbitrarily and in abuse of its discretion when it failed to require Applicant to comply with General Statute § 8-3(g), and that it violated its own regulations in failing to require the Applicant to file a site plan that reflected the proposed development. The Commission and the Applicant assert that the regulators were complied with and the Applicant was properly approved.
II BACKGROUND
The Applicant filed an application for site plan approval to construct a commercial kennel and a dwelling house on property located at 86 South Branford Road in Wallingford, Connecticut. This property was located in an RU-120 zone and contains 6.25 acres. The initial application dated February 5, 2007, was assigned application number 213-07 by the Commission. The subject property contains approximately two acres of wetlands and watercourses and thus the application required review not only by the Commission, but also by the Inland Wetlands and Watercourse Commission. (IWWC.)
The zoning regulations for the town of Wallingford authorize the construction and operation commercial kennels in the RU-120 zone provided that the property is five acres in size. Further, the zoning regulations permit the construction of a residence in the RU-120 zone provided that the property is at least three acres in size.
The administrative record reflects a dispute as to whether or not the proposed lot was of sufficient size to support both the proposed dwelling and the proposed commercial kennel. In May of 2007, the town attorney ruled that the zoning regulations required a lot size of eight acres in order to support both requested uses. The applicant was unhappy with the town attorney's decision and requested that the matter be continued from the April 9, 2007 Commission docket so that he could consult with his attorney. The matter was continued to June 11, 2007.
During this period of time the IWWC approved the site plan to construct a commercial kennel and a dwelling house filed by Applicant and granted application to conduct a regulated activity with conditions. This action is documented by a memorandum from the environmental planner reporting on the actions of the IWWC to the Commission on April 4, 2007.
Three days before the June 11, 2007 hearing the applicant filed a revised site plan diminishing the scope of the project by withdrawing the request for approval to construct a dwelling on the lot. As amended the applicant sought approval of the commercial kennel. Thus, the lot contained the required minimum five acre of size. On June 11, 2007, the defendant Planning and Zoning Commission met and after the hearing voted to approve the site plan application for the construction of the commercial kennel. One of the conditions of the approval required the applicant to submit a revised plan eliminating and removing all references on the plan to the dwelling house.
At the public hearing the plaintiff objected to the site plan for various reasons related to noise property values and protecting the rural character of the area. Further they argued that the applicant substantially modified the proposed application when he had deleted his request for approval to build a house and that at a minimum the application needed to be referred back to the Inland Wetlands Commission.
III JURISDICTION
General Statutes § 8-8 et seq. governs an appeal taken from a planning and zoning commission. A plaintiff taking advantage of a statutory right to appeal may do so only by complying strictly with the statutory provisions that created the right. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter" of an administrative appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Vine alleges he is aggrieved, in relevant part, because he is an abutting property owner with respect to the property that was the subject of the site plan application. (Complaint, ¶ 7(a).) See General Statutes § 8-8(a)(1). The court finds that the plaintiff Alan Vine is the owner of property known as 80 South Branford Road. This property abuts the property of the applicant Ilia Athan. The plaintiff Alan Vine is statutorily aggrieved in order to bring this appeal.
B Timeliness and Service of Process
A plaintiff must commence an appeal within fifteen days from the date that notice of the board's decision is published; see General Statutes § 8-8(b); and, for appeals commenced after October 1, 2004, two copies of the process must be served upon the municipal clerk. See General Statutes § 8-8(f)(2) (land use appeals shall conform to the service requirements of General Statutes § 52-57(b)(5)). The record reflects that the commission directed that publication of its decision was to occur on June 15, 2007. (ROR, Exh. 13.) The appeal was commenced by service of process upon the town clerk on June 26, 2007, and upon the defendant, Athan, on June 27, 2007. Accordingly, the proper individuals were served in a timely manner.
IV STANDARD OF REVIEW
In the present appeal, the planning and zoning commission (PZ) did not offer a reason for its approval of Athan's application. (ROR, Exh. 14.) The "commission's failure to state on the record the reasons for its actions . . . renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision." Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).
"It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008).
"In reviewing a decision of a zoning [commission], a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the commission] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning [commission's] findings, it cannot substitute its judgment for that of the [commission]." Loring v. Planning Zoning Commission, supra, 287 Conn. 756.
V DISCUSSION
Vine contends that the record is clear that when Athan withdrew his request for approval to construct a dwelling house by "X"ing out the dwelling on subject property, there was a "totally different site development" than had been shown previously to the planning commissioner or to the IWWC. (Vine's Brief, p. 5.) He maintains that the IWWC has never seen the newly proposed plan that Athan offered at the June 11, 2007 planning commission meeting.
As a result, Vine frames the issues as (1) whether the PZ gave the statutorily-required due consideration to the "doings" of the IWWC, and (2) whether the Wallingford zoning regulations authorize a waiver of the requirement to submit a site plan to the IWWC when, in the town planner's opinion, the site plan application's impacts do not warrant such referral. (Vine's Brief, pp. 8-9.)
The PZ submits that the IWWC approved the original site plan and that the PZ conducted a full discussion concerning the nature of the wetlands permit. It further represents that, prior to approving the site plan, it considered the IWWC decision and "[t]here is no evidence in the [r]ecord suggesting that the elimination of the house from the site plan affected the wetlands on the property. In fact, the [t]own [p]lanner pointed out that the changes in the site plan were [nowhere] near the wetlands area. Record, Exhibit 15, p. 16. In fact, the revised plan, itself, shows no changes to the regulated wetlands area." (PZ's Brief, p. 5.) The PZ's position is that "[w]ith no change in the plan relating to the regulated wetlands, there was no requirement that the revised site plan be resubmitted to the [w]etlands [c]ommission." (PZ's Brief, p. 5.)
Athan adopts the brief of the PZ in its entirety. (Docket Item No. 110.)
General Statutes § 8-3(g) provides, in pertinent part, that "[i]f a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency."
A review of the record reflects that the IWWC had approved the original site plan; (ROR, Exh. 3f); the plan that the IWWC approved was the plan filed with the initial application to the PZ (ROR, Exh. 2) and the sole difference between the plan approved by the IWWC and the plan approved by the PZ (ROR, Exh. 10) is that the first plan requests approval for a proposed 2.5-story residence and a kennel and the second plan calls only for approval of a kennel. The kennel building remained in precisely the same location on the lot in the application considered by the IWWC and the application approved by the commission. The commission voted to approve the application and appended various conditions. (ROR, Exh. 13 and 14.) One of the conditions mandated that Athan file a revised site plan, removing all references to the eliminated residence. (ROR, Exh. 14.) A review of the transcript of the public hearing demonstrates that the defendant commission sought and received information concerning the actions of the IWWC (ROR Ex. 12, p. 11, 13-18.) Specifically, the town planner noted "But, if you look at the plans, the area that's being changed is nowhere near the wetlands or the wetlands buffer. And, normally, when you do less, you don't need a permit. It's — if they were doing more, they would have to go back to Wetland. That's why, after this came in on Friday, I never gave it to the Environmental Planner because it's less impact rather than more impact . . ." (ROR Exh. 12 p. 16-17.)
In Irwin v. Planning Zoning Commission, 45 Conn.App. 89, 694 A.2d 809, (1997), rev'd on other grounds, 244 Conn. 619, 711 A.2d 675 (1998), a plaintiff sought to subdivide a parcel, but first applied for approval from the conservation commission because the parcel contained wetlands. After initially rejecting the application, the conservation commission approved it after the plaintiff made various changes to his application. The zoning commission, however, denied the plaintiff's subdivision application. Subsequently, the plaintiff filed an application for subdivision approval and a special exception that differed from the denied application, although the wetlands impact did not change. The zoning commission again denied the application and the trial court affirmed the zoning commission. The Appellate Court disagreed, reversing the trial court's judgment.
In its decision, the Appellate Court observed that an intervening defendant, Karen Grimes, had argued that the zoning commission would have lacked authority to approve the plaintiff's application because the plaintiff failed to submit the final application to the conservation commission. Id., 92 n. 4. The Appellate Court agreed with the plaintiff's position that the conservation commission "had already approved the application because the previous application was essentially the same. With respect to the effect on the parcel's wetlands, the applications were identical." Id. In addition, the conservation commission chairman wrote a letter to the chairman of the zoning commission indicating that the plaintiff's new subdivision plan would not affect the previous approvals and permits. "Thus, no new application was required." Id.
In Breiner v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007159 (June 2, 2006, Brunetti, J.), 41 Conn. L. Rptr., 478, an applicant submitted an application to the wetlands commission for approval of wetlands regulatory activities in conjunction with a subdivision. Following the wetlands commission approval, the city plan commission denied the subdivision application. Subsequently, the applicant filed a second application containing minor changes. He did not file a new application with the wetlands commission, however. He represented that the plans were identical to the plans approved previously by that agency. Eventually, the city plan commission approved the application.
On appeal, the plaintiff argued that the commission's action was illegal, in pertinent part, because the applicant should have filed a new application with the wetlands commission, but that the commission merely accepted the wetlands commission's prior approval when considering the new application. The applicant countered that "it did not have to make a new application to the IWWC because the new subdivision application did not make any changes to the areas regulated by the wetlands commission, that the lot lines and sizes were exactly the same and that only minor changes to the plan were submitted that did not affect the wetlands approval." Id., 480. The trial court agreed and found that because the new application considered at the most recent public hearing "was exactly the same as the one approved by the wetlands commission, a new one was not required." Id. The court further explained that the record revealed that the city plan commission had considered the wetlands commission's report and the permit, discussing it "at length." Id., 481.
The court observed that the modified plans had made changes only with respect to a change in the road's name, the movement of a storm drain and the extension of offsite storm sewers. The court emphasized that "[n]one of these changes affected the regulated wetland areas." Id., 481 n. 2.
Similarly, in the present appeal, the record reflects that the PZ fully discussed the IWWC's previous approval; (ROR, Exh. 12, p. 13-18); and the town planner had explained that the changes in the site plan were not even in close proximity to the wetlands area. (ROR, Exh. 12 p. 16-17.) In addition, the record reveals that one of the conditions imposed by the commission on its approval mandated that Athan submit a site plan reflecting the removal of the residence from the proposal. (ROR, Exh. 12 p. 19.)
Accordingly, Vine's position that the PZ failed to give "due consideration" to the IWWC's report in rendering its decision on Athan's application, in violation of General Statutes § 8-3(g), is unavailing, as is his contention that the commission otherwise violated its own regulations. Therefore, for the foregoing reasons, the court dismisses Vine's appeal.