MEMORANDUM OF DECISION

KEVIN E. BOOTH, JUDGE.

Background and Facts

The plaintiff, Roger Lawson, appeals a decision of the defendant, the East Hampton Planning and Zoning Commission, denying his application for a special permit for earth excavation, processing and removal. The plaintiff appeals pursuant to General Statutes §§ 8-3c and 8-8 on the grounds that the commission acted illegally, arbitrarily and in abuse of its discretion.

This appeal concerns a certain parcel of land owned by the plaintiff that is located on the west side of Waterhole Road in the town of East Hampton, Connecticut. The property contains approximately 118 acres. Norman LaPine, the plaintiff's predecessor in title, had previously run an earth material operation on the property. The record does not disclose the exact dates of LaPine's operation. The record does indicate, however, that there was a special permit issued in November of 1975 for the excavation of the property. According to the record, the permit expired two years later in November of 1977.

In 1996, the plaintiff purchased the property. In February 2004, the plaintiff filed a formal application to the commission for a special permit to excavate earth materials from approximately nine acres of the property. The commission conducted public hearings regarding the plaintiff's application on April 7, May 5, June 2 and July 7 of 2004. At a subsequent meeting on August 4, 2004, which was held to vote on the application, the commission denied the application without giving reasons therefore.

The June 2 and the July 7 hearings are particularly relevant to the appeal before this court. The proceedings at the June 2 hearing are hardly a model on how to conduct a zoning commission public hearing. It is claimed that at that hearing one commissioner, who had not been seated as a member, took an active part in the discussion and attempted to vote on motions. Further, in the middle of the public hearing, commissioner Zatorski, who was seated at the time, suddenly made a motion to close the public heating and to deny the plaintiff's application. After the plaintiff's counsel objected to consolidating the two matters into a single motion, the commission bifurcated its motions. The commission voted to close the public hearing. Commissioner Zatorski then made a second motion to deny the application, which subsequently failed. Finally, after speaking against the application, commissioner Zatorski polled the other commissioners as to their opinions on the application. After a recess, daring which there were unrecorded conversations between commission members, commissioner Zatorski moved to rescind the prior motion to close the public hearing and this motion to rescind passed unanimously. The public hearing was reopened and continued until July 7, 2004.

At the July 7 hearing, which was the last night of public hearings, the plaintiff's attorney claimed for the first time that the prior excavation constituted a pre-existing nonconforming use. Although the plaintiff's representatives had mentioned during earlier hearings that excavation occurred on the property during the 1970s, there had been no claims that this was a prior pre-existing nonconforming use at the previous hearings.

Aggrievement

General Statutes § 8-8 regulates appeals from zoning commissions to the Superior Court. Section 8-8(a)(1) provides, in relevant part, that an "`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." "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of' an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409 (2002).

The plaintiff alleges that he is aggrieved by virtue of owning the subject property. At the time of trial, the plaintiff provided evidence, which was in the form of oral testimony and a deed, that he owned the subject property at the time of the permit application and that he has continuously owned the subject property since applying for the permit. Based on this evidence, the court made a finding of aggrievement.

Issues Nonconforming Use

The plaintiff appears to claim that his use of the property, for an earth removal operation is a protected nonconforming use. The record does not clearly reveal, however, that the plaintiff's predecessor in title was operating prior to the adoption of zoning in the town of East Hampton. Further, the record demonstrates the following: (1) that the plaintiff's predecessor in title previously obtained a special permit for land excavation, which presumably came under the zoning authority; (2) that the permit expired in 1977; (3) that the zoning enforcement officer asked that it be renewed; and (4) that the permit was not renewed. Additionally, it is clear that the gravel operation is a permitted use within the zone in question. Further, the plaintiff states "Mr. Lawson concedes that despite the nonconforming use, the commission has the authority to reasonably regulate the operation." (Plaintiff's Brief Page 7.)

The Supreme Court has held that the "[r]egulation of a nonconforming use does not, in itself, abrogate the property owner's right to his nonconforming use . . . A town is not prevented from regulating the operation of a nonconforming use under its police powers. Uses which have been established as nonconforming uses are not exempt from all regulation merely by virtue of that status. It is only when an ordinance or regulatory act abrogates such a right in an unreasonable manner, or in a manner not related to the public interest that it is invalid." (Internal quotation marks omitted.) Bower v. Waste Management of Connecticut, Inc., 234 Conn. 221, 242 (1995).

The court finds that it is not clear that this was a pre-existing nonconforming use. Further, the court finds that the operation is a use permitted in the zone subject to regulation by special permit and that the commission denied the application based upon the requirements of the special permit, not based upon the prohibition of the use in the zone.

Fundamental Fairness of the Hearing CT Page 16314

The plaintiff appears to claim that procedural irregularities at the June 2 hearing produced a type of per se prejudice entitling him to either the permit or a new hearing.

Specifically, the plaintiff argues that the hearings were permanently tainted by the commissioner's reading of a prepared motion and subsequent polling of commissioners, as well as the alleged opening and closing of the meeting. The court finds that none of the procedural irregularities at the June 2 hearing amounted to a denial of fundamental fairness.

There is one reported Superior Court case dealing with the issue of prepared motions. In Fund for Animals, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0396816 (February 1, 1993, Norko, J.) ( 8 Conn. L. Rptr. 265), there were a series of hearings on a subdivision application. At "each of these hearings the commission was given a prepared motion by the staff. Based upon the prepared motions it [was] the plaintiffs' contention that the commission had already made up its mind prior to the hearings and the holding of the hearings were mere statutory acts of no significance. As such, the plaintiff [claimed] that the commission's acts [were] illegal and arbitrary and should be voided by this court." Id. The court disagreed with the plaintiffs' allegations and found that "[a] proposed motion prepared by staff by itself is not indicative of predetermination of the board's position . . . [T]he commission not only listened once but felt the need to continue for a second hearing to hear more." Id.

The plaintiff argues that the commission had no ability or legal right to reopen the hearing after it was closed. The plaintiff relies on Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554, 568 (1998). In Frito-Lay, the commission closed its public hearing on January 14, 1985. Subsequently, it held additional public hearings on February 11, March 11 and March 26. In reading Frito-Lay, it is not entirely clear how the hearings of February and March were set. It does not appear that these meetings were set by a vote taken at the January 14 meeting, nor does it appear that any attempt was made to reverse the closing of the public hearing on January 14.

The court holds that the instant case resembles Toffolon v. Zoning Board of Appeals, 155 Conn. 558 (1967). Like the instant case, Toffolon presented a situation where the board held multiple votes including one to reconsider its first motion and reverse the intervening motion. The Supreme Court noted that "[a]lthough the board met on three different dates, the three meetings constituted but one session of the board. Its deliberation on the matter was not concluded until January 22, 1966. Prior to that date, the session of January 10 was not adjourned, there was no announcement of the board's decision, and no rights of any party intervened. We are not here concerned with a situation in which a board has duly taken final action on a matter and has thereafter entertained an application for a rehearing." Id., 565.

The court holds that in the instant case the public hearing was not in fact closed, rather the motion to close the public hearing was reconsidered at the same meeting and continued to another public hearing in accordance with the wishes of the plaintiff. While a commission may not finally terminate a public hearing and then, for whatever reason, schedule a new public hearing, this is not what occurred in the case before this court.

Failure to Give Reasons

In the case before this court, the plaintiff claims that the court is precluded from searching the record because the commission gave no reasons for its denial of the requested permit. In A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 512 (2002), aff'd 267 Conn. 192 (2004), the Appellate Court noted, albeit in dicta, that the statutory provisions instructing the planning and zoning commission to give reasons on the record for the denial of a special permit; see General Statutes §§ 8-3c and 8-26e; are mandatory rather than directive, and thus, the reviewing trial court erred by searching the record where the commission failed to state reasons for an applicant's denial. "Although we agree with the [trial] court's conclusion as to the sufficiency of the evidence, its search of the record to find a sufficient reason for the defendant's denial was improper. General Statutes § 8-3c(b) provides in relevant part that `[w]henever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision.'" A. Aiudi Sons, LLC v. Planning Zoning Commission, supra, 72 Conn.App. 512-13.

Although the Supreme Court affirmed A. Aiudi Sons, the appeal was limited to determining whether the subject matter at issue was a site plan application or a request for a special exception. See A. Aiudi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 196 (2004). The Supreme Court did not address, or even mention, the Appellate Court's statement that the "search of the record to find a sufficient reason for the defendant's denial was improper." The court can find no case law citing A. Aiudi Sons for the proposition that a court may not search the record.

In Anastasi v. Zoning Commission, 163 Conn. 187 (1972), our Supreme Court stated that: "Upon appeal, the trial court reviews the record before the board to determine whether it acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Id., 191. In 2004, two years after the Appellate's Court decision in A. Aiudi Sons, the Supreme Court reaffirmed previous holdings; see Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995); and held that "[w]here a zoning [commission] does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454 (2004).

The court finds that the prohibition on searching the record for reasons as articulated in A. Aiudi Sons, LLC v. Planning Zoning Commission, supra, 72 Conn.App. 502, is dicta. Moreover, the court is unable to reconcile that dicta with the long line of Supreme Court precedent that seemingly instructs trial courts to look at the record when no reasons are given.

When the court does look at the record, it concludes that the commission's denial of the plaintiff's special permit application is supported by substantial evidence. The plaintiff states that "while the citizenry of East Hampton proffered many emotional pleads to the commission, it offered no specific facts nor a single cite specific piece of evidence, which would indicate that there is any negative on the health, safety or welfare of the community." Brief at page 15. However, there is evidence that would allow the commission to have legitimate concerns about environmental matters, health risks, adverse affects upon the neighborhood and traffic safety. The commission received a recommendation from the Department of Health that air quality monitoring procedures be adopted in the event the commission approved the special permit application. The East Hampton town engineer advised the town planner that he had a number of remaining concerns including the width of Waterhole Road, the inadequate turning radii of the driveway entrance to the excavation site at its intersection with Waterhole Road and the sight lines at the entrance driveway. Concerned parents of school children submitted evidence that the speed vehicles actually travel at the intersection of Rt. 16 and Waterhole Road significantly exceeds the posted speed limits and that twenty-seven school buses pass the entrance to the proposed excavation site on a school day. Mr. Thomas, the applicant's civil engineer, confirmed that the neighborhood traffic safety concerns were legitimate, but attempted to reassure the commission anyway. Mr. Thomas stated, "[w]e don't deny the fact that it is . . . some of the intersections are dangerous. But we proposed to post signs in either side of the intersection on Rt. 149 and 16 and in front of Mr. Lawson's property, trucks entering highway. I mean, we're doing the best we can. We're not saying it's not dangerous, it is a dangerous intersection." Record Exhibit 155 Page 30.

Taking

Finally, the plaintiff claims that the result of the commission's actions amounts to a taking of his property. In Chevron Oil Company v. Zoning Board of Appeals Town of Shelton, 170 Conn. 146, 151 (1976), the court held: "Short of regulation, which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner. The financial effect on a particular owner must be balanced against the health, safety and welfare of the community." (Citations omitted; internal quotation marks omitted.)

The court agrees with the plaintiff that the action of the commission has severely limited the value of the property as a potential gravel bank. However, the denial of the single application is not sufficient to prove a taking unless the owner proves that the commission will not allow any reasonable use of the property. A F Construction Co. v. Zoning Board of Appeals, 60 Conn.App. 273, 279-80 (2000).

In Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 416 (1991), the court concluded that four applications were not enough because they were not significantly different to discern the agency's final decision on the development. "[A]lthough repeated applications and denials are not necessary to show finality, in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause." (Internal quotation marks omitted.) Id., 417. There is nothing before the court that indicates what the commission would do if other applications were made and other uses, such as a subdivision, were proposed. Certainly, under Gil there is not sufficient evidence at the present time to find a taking.

Conclusion

The June 2 hearing could have been conducted in a more orderly manner. Further, the court would have preferred that the commission state reasons for its decision in accordance with the statute. Nevertheless, the court does not find the actions of the commission to be unreasonable, illegal or arbitrary and the appeal is dismissed.