Opinion
No. FST CV11 5013556 S
October 13, 2011
MEMORANDUM OF DECISION
In this administrative appeal, the plaintiff, Michael Calise, appeals from two decisions of the defendant, the planning and zoning commission of the town of Westport (the Commission) approving amendments to the text of the Westport zoning regulations. In his appeal, the plaintiff alleges that the approval of the amendments was illegal because they significantly reduce the market values of many properties in the affected zones, including property owned by the plaintiff, to such an extent as to constitute a partial taking without compensation in violation of the plaintiff's rights.
The amendments approved by the commission that are the subject of this appeal are Text Amendment No. 618 and Text Amendment No. 619. Text Amendment No. 618 proposed to amend the text of various provisions of the Zoning Regulations in order to add new requirements to provide affordable housing for two-family and multifamily dwellings. (ROR, Exs. 2 and 6.) Text Amendment No. 619 proposed to create a new Section 39A in the Zoning Regulations in order to allow the development of multifamily housing on split-zoned properties where twenty percent of the housing units are owned or rented as affordable units as that term is defined by General Statutes § 8-30g. (ROR, Exs. 62 and 63.)
The Text Amendments were proposed in order to provide more affordable housing, which was identified as a goal under the 2007 Westport Plan of Conservation and Development. The Text Amendments were recommended by an affordable housing subcommittee that the town of Westport established in order to determine ways in which it could increase the number of affordable housing units in Westport. The subcommittee determined that only 2.31% (231 units) of Westport's total housing stock was considered "affordable." (ROR, Exs. 2 and 62.)
While the Text Amendments added requirements to make twenty percent of multifamily housing units affordable, the Text Amendments also reduced and/or eliminated many significant restrictions to the development of multifamily housing. (ROR, Ex. 2.)
The commission considered the Text Amendments during public hearings held on September 30, 2010 and October 7, 2010. The commission approved the Text Amendments during a work session on November 1, 2010. (ROR, Ex. 42 and 98.)
Legal notice of the commission's decisions to approve the Text Amendments was published in the Westport News on November 10, 2010. (ROR, Ex. 43.) In accordance with § C10-4.A. of the Charter of the Town of Westport, the plaintiff and other residents of Westport requested the Westport Representative Town Meeting to review the decisions of the commission. The matter was considered by the Representative Town Meeting on December 7 and 8, 2010. The Representative Town Meeting voted to not overturn the decision of the commission. The plaintiff commenced this appeal on December 22, 2010. On February 18, 2011, the commission moved to dismiss the plaintiff's appeal on the ground that it was not served within fifteen days of the publication of the notice of the commission's decision as required by General Statutes § 8-8. The court (Tobin, J.) sustained the plaintiff's objection to the motion to dismiss on the ground that § C10-4.D. of the Charter of the Town of Westport provided for an extension of the time to file an appeal when decisions of the commission are subject to the action of the Representative Town Meeting.
AGGRIEVEMENT
At a hearing held on October 4, 2011, the plaintiff presented evidence that at all relevant times he was the owner of property affected by the Text Amendments. Based on this evidence, the court found the plaintiff to be aggrieved by the decision of the commission.
DISCUSSION
When a zoning commission acts on an application to amend its zoning regulations, it acts in a legislative capacity. Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542 (1991); Parks v. Planning Zoning Commission, 178 Conn. 657 (1979). In making such decisions, the zoning commission is afforded broad discretion and the freedom "to modify its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change." (Internal quotation marks omitted.) Homart Development Company v. Planning Zoning Commission, 26 Conn.App. 212, 216 (1991).
When a zoning commission acts in its legislative capacity, its discretion is broader than that of an administrative board acting in its administrative or quasi-judicial capacity. In First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 544 (1973), the court set forth a two-part test to be applied by courts called upon to review such legislative decisions. The court held that the reviewing court is limited to determining: 1) was the decision in accordance with the comprehensive plan; and 2) was it reasonably related to the normal police power purposes set forth in General Statutes § 8-2. Id., 541.
A decision of the zoning commission when acting in its legislative capacity should be disturbed only when it is "clearly contrary to law or in abuse of discretion." Malafronte v. Planning Zoning Board, 155 Conn. 205, 210 (1962). A plaintiff's appeal can be sustained only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal. Samperi v. Planning Zoning Commission, 40 Conn.App. 840 (1996); Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 470 (1982).
In the brief he filed in support of his appeal, the plaintiff claims that the decision of the commission to approve the Text Amendments was illegal because they "significantly reduce the market values of many properties amounting to a partial taking in the effected zones in violation of CT General Statutes Chapter 24 Zoning § 8-2 Regulations." Nevertheless, a mere reduction in property values, even if proven, does not support a claim for a partial taking without compensation. In Cohen v. City of Hartford, 244 Conn. 206 (1998) the court considered a similar claim and held: "Where . . . the government entity merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole." (Internal quotation marks omitted.) Id. at 220. The record does not demonstrate that the Text Amendments unfairly singled out the plaintiff or his property to bear a disproportionate share of the burden of creating affordable housing in Westport. Taken together, the Text Amendments were broad in scope and were designed to encourage affordable housing in many zones in the town. There is no evidence in the record to establish a claim for a partial taking.
In his brief, the plaintiff candidly admits that "[a] review of zoning case law and court decisions discovers no cases relating to the plaintiffs' argument that a Planning and Zoning Commission acted improperly and illegally in enacting regulation which violated Connecticut State Statutes which guaranteed the protection of property values." The court agrees with the plaintiff that there is no judicial authority supporting his claim that protection of property values must be an overriding consideration for a commission considering an amendment to zoning regulations.
The resolutions adopted by the commission on November 1, 2010 approving the Text Amendments refer to both goals and recommendations set forth in the 2007 Town Plan of Conservation and Development that would be advanced by the commission's action. (ROR, Exs. 42 98.)
The resolution adopted by the commission approving Text Amendment No. 618 included the following:
"10. This amendment will benefit the Town by creating more housing choices, and more affordable housing opportunities. This amendment will also benefit the Town as it addresses some of the housing goals and strategies established in the 2007 Town Plan of Conservation and Development. One specific strategy is to ` Consider requiring that any multi-family development provide affordable housing units.' p. 6-4" (Emphasis in original.)
"11. Another recommendation that will be addressed is ` The Plan recommends that developments along the Post Road be encouraged to consider incorporating residential uses on commercial properties in order to create mixed-use buildings along the corridor. As residential units are added, this will increase the variety of housing choices in locations with access to shopping and public transportation.' p. 7-13" (Emphasis in original.)
The resolution adopted by the commission approving Text Amendment No. 619 included the same findings numbered as paragraphs nine and ten, respectively. These findings demonstrate that the commission's actions were in accordance with a comprehensive plan and, therefore, the commission's decision satisfied the first prong of the test set forth in First Hartford Realty Corp., supra.
General Statutes § 8-2 lists, at length, the purposes for which zoning regulations may be adopted and provides for certain purposes that the regulations must address. The statute includes the following legislative mandate: "Such regulations shall also promote housing choice and economic diversity in housing including housing for both low and moderate income households, and shall encourage the development of housing which will meet the housing needs identified in the housing plan prepared pursuant to section 8-37t." The court finds that the Text Amendments are reasonably related to one of the purposes set forth in General Statutes § 8-2 and, accordingly, the commission's decision satisfies the second prong of the test set forth in First Hartford Realty Corp., supra.
Given the limited scope of the court's review of the commission's decision, the court finds that the plaintiff's appeal is without merit and, accordingly, it is dismissed.