Opinion
No. CV 11 5015268S
November 14, 2011
MEMORANDUM OF DECISION
The plaintiffs, James H. Wong and Suzanne M. Hoy, appeal from a February 15, 2011 decision of the defendant Southington planning and zoning commission (the commission) granting a special permit use to the intervening defendant AA Denorfia Building Development, LLC (Denorfia). The plaintiffs' home abuts the premises subject to the special permit and they are aggrieved. They were initially joined in this appeal by several other plaintiffs whose properties were alleged to abut the premises subject to the special permit. These co-plaintiffs, to the extent that they have not yet voluntarily withdrawn, are now dismissed from the appeal for lack of aggrievement.
The town of Southington and the town planner were also named as nominal defendants.
They introduced in court a map from the record as well as a mortgage deed (Exhibit 1) that supports their statutory standing. General Statutes § 8-8(a)(1).
Some of these co-plaintiffs withdrew from the appeal before oral argument. The remainder did not appear at oral argument and presented no proof of aggrievement.
Therefore they are dismissed from the appeal.
The record shows as follows with regard to the plaintiffs' appeal. On November 9, 2010, Denorfia applied for a special permit use, Commission Regulations §§ 3.04.2B, 8.00 and following, for the development of fourteen attached multi-family condominium units at 45 Carter Lane and 595 Main Street in Southington. (Return of Record, ROR, #1.) An attachment to the application shows that a computer print-out was developed to give notice, in keeping with Regulation § 14-03.5, to property owners within 500 feet of the proposed development.
The town planner, on questioning the town health department, received a response that Denorfia's plans met the requirements of the regulations. (ROR, #6.) The town planner's staff questioned Denorfia's engineer on the requirement of § 3.04.2.B.1 that each lot shall have a minimum width of 200 feet. On December 21, 2010, the engineer replied that the lot in question had two parcels, #1 and #2 together totaling 200 feet of frontage. (ROR, #7; Supp. ROR, attachment 2.) Denorfia's engineer in this letter also mentioned modifications planned that would move the play area, create a turn-around for fire trucks, correct sight lines, and correct the stationing of mailboxes. The planner's office replied that it would let its comment stand as to the lot width and also noted that the special permit use, if granted, would still require a site plan. (ROR, #9, 10). On December 22, 2010 a traffic study was filed by Denorfia showing that the proposed development would not have a major impact on traffic flow. (ROR, #11.)
A public hearing on the application commenced on January 4, 2011. (ROR, #18.) The applicant described the site: to the east is Carter Heights condominiums, to the west and south were both multi-family and single homes. Turning to Regulation § 3-04.2, the lot width was more than 200' and the buildings' height did not exceed 35'. There were sidewalks on one side of the development, as well as the required play spaces. The traffic report did not indicate a problem. Regulation § 8 setting forth general conditions for special permits was met in that property values were not impaired. A letter was produced by a real estate appraiser to that effect. (ROR, #14.) The access to the property would be from Carter Lane, not Main Street. The sight distances would be improved at this point. (ROR, #18, pp. 4-5, 21-22.)
The abutting neighbors then addressed the commission. They had a variety of concerns, including open space and drainage. The plaintiff, Hoy, objected to the lot frontage and the tightness of the lot. Denorfia replied that there would be an amendment to the size of the development and that a berm would be utilized to control water run-off. (ROR, #18, p. 20.)
The public hearing continued on January 18, 2011 (ROR, #28.) with Denorfia and his associates stating that the commission regulations had been satisfied with a revised plan. He made assurances that he would work with the neighbors and the commission staff on issues that they had raised, including drainage and landscaping. Again, Denorfia emphasized that the entrance to the development was at 45 Carter Lane and that 595 Main Street is "no longer going to exist." ( Id., p. 16.) Neighbors, including the plaintiff Hoy, spoke again in opposition. The public hearing was then closed.
On January 24, 2011, the planner notified the commission that if the special permit were approved, Denorfia would still have to make an application for approval of a site plan. (ROR, #29.) The planner also notified the engineer for Denorfia that it would make no further comment on the plans. (ROR, #30.) On February 15, 2011, the commission considered the special permit application and voted by 6-1 to approve with conditions. (ROR, #36). The planner wrote to Denorfia on February 16, 2011, stating that the application for the special permit had been granted with the following conditions: "1. Final design of sight line improvements shall be subject to approval of Director of Public Works; 2. Clearing shall not exceed what is shown on the plan and the limits of clearing are to be marked with orange construction fence before excavation begins; 3. No residential or accessory buildings shall be on 595 Main Street; 4. Landscaped buffer shall consist of mixture of deciduous and evergreen species to provide year round buffer. Applicant shall work with staff on this; 5. Applicant shall provide vinyl lightproof fence along entry road to protect Carter Lane residents from headlights." (ROR, #38.)
While the conditions were discussed, the majority gave no reasons for approval of the special permit other than moving for its approval after receiving "a wealth of information." (ROR, #36, p. 13.) The one commissioner voting against the special permit stated that his reason was lack of neighborhood compatibility, citing Regulation § 8-02.9. ( Id., p. 7.) Presumably the majority did not agree with this commissioner on this point.
This appeal followed from the decision of the commission. As is clear from the above record, the commission approved the application on motion. "When a zoning commission has issued `a formal, official, collective statement of reasons for [its] action[s],' the scope of our review is limited to determining `whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 428-29, 24 A.3d 27 (2011), quoting Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
"It is axiomatic that a [planning and zoning] commission, in passing on [applications as here], acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . It is equally axiomatic that the trial court, in reviewing the actions of a . . . commission regarding [an] application, may not substitute its judgment on the facts for that of the . . . commission . . . The evidence, however, to support any [reason stated by the commission for its action] must be substantial . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis in fact from which the fact at issue can be reasonably inferred . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal." (Citation omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 617-18, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).
With regard to a standard of review for special permits, Kilburn v. Plan Zoning Commission, 113 Conn.App. 621, 626-28, 967 A.2d 131 (2009), states, in part, as follows: "When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity . . . 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. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . 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 . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . .
"The special permit, or special exception, as it is also known, is authorized by General Statutes § 8-2. [Section] 8-2 explicitly enables the use of special exceptions. A special [exception] allows a property owner to use his property in a manner expressly permitted by 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 . . . An application for a special permit seeks 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 . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan . . . [The special permit] provides a local zoning agency with some flexibility while maintaining standards applicable to all members of the municipality." (Citations omitted; quotation marks omitted.)
On the point of the commission's discretion, our Supreme Court has observed: "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 board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." CT Page 23568 Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).
Turning to the issues in the appeal, the plaintiffs raise several claims of bias in their brief that are not based upon evidence in the record. Our Supreme Court has ruled that such unsupported claims may not be raised in a zoning appeal. "There is a presumption . . . that administrative board members acting in an adjudicative capacity are not biased . . . 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 . . . From our thorough review of the record, we are convinced that the commission has afforded, in good faith, the plaintiff ample opportunity to introduce evidence . . . and [the commission was] not predisposed to decide this matter in a manner adverse to the plaintiff." (Brackets omitted; citations omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429-30, 655 A.2d 1121 (1995).
Other claims of the plaintiffs do involve evidence in the record, but they have not met their burden of showing a lack of support by substantial evidence for the commission's decision. See Azzarito v. Planning Zoning Commission, supra, 79 Conn.App. 618. These claims include those relating to safety due to the lack of access by fire and other emergency vehicles. On the contrary, the record shows that an adequate turnaround is in the plans. (ROR, #18, p. 5.) Also, the claim regarding problems with traffic is not supported in the traffic study. (ROR, #11.) The claim that the commission did not comply with the village district legislation does not apply as the commission had not established a village district.
The plaintiffs claim that certain landowners within 500 feet of the property did not receive notice. The record shows that the commission based notice on a "GIS" computer mapping system. (ROR, #2.) Further the commission published notice of the January 4, 2011 public hearing in the Southington "Record Journal." (ROR, #8.) Our appellate courts have held that the purpose of notice is to apprise the public sufficiently of the activity planned at the premises, that interested citizens might prepare for the public hearing. "[N]otice of a hearing is not required to contain an accurate forecast of the precise action sought which will be taken on the subject matter referred to in the notice . . . Anyone interested in the precise action sought could have consulted a plot plan showing all the details of the proposed changes which the defendants had filed . . . in the office of the zoning board." Cassidy v. Zoning Commission, 116 Conn.App. 542, 551, 976 A.2d 29 (2009), quoting Shrobar v. Jensen, 158 Conn. 202, 207-08, 257 A.2d 806 (1969).
The major argument of the plaintiffs involved Regulation § 3-04.2.B.1: "Each lot shall have a . . . minimum width of 200 feet. Contiguous parcels of land appropriately zoned, may be added to an approved multi-family development by special permit, providing any additional land be incorporated with the original development and managed as a single entity." The plaintiffs break down the first parcel at 595 Main Street with a lot width of 80.02' and the second parcel with a lot width of 133.89.' The parcels are at right angles to each other. The plaintiffs then argue that the application fails to satisfy the 200 feet requirement.
On the other hand, the commission and Denorfia argue that the two parcels make up one "lot." The entrance to the project is only at 45 Carter Lane and the first parcel with frontage on 595 Main Street touches the second parcel. Thus, the commission and Denorfia aggregate the 80.02' and the 133.89' to obtain a figure of 213.9.' The commission and Denorfia also cite Regulation § 2-12, defining "Lot" as a "plot or parcel of land occupied or capable of being occupied by one principal building and the accessory buildings or uses customarily incidental to it . . ." and "Lot, Width Of" as the "distance between the side lines of a lot measured along the street line . . ." None of the commission regulations forbid the aggregation of separate measurements to determine total lot width.
As seen above, the town planner's office, early in the application process, questioned whether the regulations would allow for such interpretation of lot width, but merely stated that the comment would stand for the record. (ROR, #9.)
The court recognizes that an "honest judgment" has been made here by the commission after two days of hearing, and it will not overturn its decision. See Morikawa v. Zoning Board of Appeals, 126 Conn.App. 400, 406, 11 A.3d 735 (2011); Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137, 677 A.2d 987 (1966). This concept of "honest judgment" has been in place for over fifty years. See Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538 (1952). See also Baron v. Planning Zoning Commission, 22 Conn.App. 255, 576 A.2d 589 (1990) (trial court erred in sustaining appeal from zoning commission; court cannot substitute its interpretation of regulation for reasonable interpretation of the commission).
As the judge stated in Comeau v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 97-00839 10 (April 7, 1999, Quinn, J.): "While the plaintiffs' interpretation is not inconsistent with the regulations . . . the court notes that the Defendant Commission considered these issues . . . The court finds, from the record, that the Defendant Commission's interpretation of its regulations as they apply to this . . . application is reasonable. The court will not disturb the Defendant Commission's judgment in this regard."
The appeal is dismissed, without costs to either party, for the reasons stated above.