Opinion
No. DBD-CV-08-4008308-S
July 29, 2010
MEMORANDUM OF DECISION
The plaintiffs, Karin A. NeJame and Philip D. Burke, appeal pursuant to General Statutes § 8-8 from the decision of the defendant planning zoning commission of the town of Bethel (commission), which granted the application of the defendant Verdi Properties, LLC (applicant) for a zoning map amendment to change the zoning designation of portions of property located at 33 Grassy Plain Street, 37 Grassy Plain Street and 39 Grassy Plain Street, Bethel, Connecticut (premises). The complaint alleges that the plaintiffs are owners of property within one hundred feet of the premises located at 1 Fleetwood Avenue, Bethel, Connecticut. At the trial of this matter, counsel for the plaintiffs produced a deed to 1 Fleetwood Avenue, Bethel, Connecticut, vesting title in the plaintiffs together with evidence that the plaintiffs' property is located within one hundred feet of the premises. The court finds that the plaintiffs, Karin A. NeJame and Philip D. Burke, are statutorily aggrieved by the commission's decision pursuant to General Statutes § 8-8(a)(1) and therefore have standing to bring this appeal.
The following facts are found based on an examination of the record. The applicants are contract purchasers of property owned by B E Enterprises and located at 37 Grassy Plain Street and 39 Grassy Plain Street in Bethel. Each of these two abutting parcels measure approximately sixty feet in width by six hundred feet in depth. Each has sixty feet of frontage on Grassy Plain Street to the east. The front portion of each, to an approximate depth of between two hundred feet to two hundred fifty feet measured from Grassy Plain Road, is zoned "commercial C." The rear or remainder of each parcel is zoned "residence R-10." To the immediate north and abutting the B E parcels is property of Exxon Mobil Corporation. The bulk of this property lies in the commercial C zone and contains a gas station. This parcel has one hundred nine feet of frontage on Grassy Plain Street to the east and approximately two hundred one feet of frontage on Fleetwood Avenue to the north. A narrow extension from the rear of this parcel measuring between fifty-two feet and twenty-seven feet in width and three hundred fifty-nine feet in length abuts and runs parallel to the residentially zoned portion of 37 Grassy Plain Road. Approximately midway along its northerly length this parcel has approximately thirty-four feet of frontage on Fleetwood Park Road at a location on the outside of a ninety degree dogleg turn on the road. Also to the north and on either side of the dogleg in Fleetwood Park Road lie two abutting residential parcels fronting on Fleetwood Park Road. (Return of Record [ROR] appendix A2.)
To the south of the B E parcels along Grassy Plain Road lie three parcels, each approximately sixty feet in width and between two hundred fifty and two hundred thirty-two feet in depth, containing mixed commercial uses. The front portion of each, to an approximate depth of two hundred feet measured from Grassy Plain Road, is zoned "commercial C." The rear portion of these three parcels, a strip between approximately thirty-two feet and fifty-four feet in width by one hundred fifty feet in length and known as the "Fernandes property," lies in the residence R-10 zone but is currently used as a parking lot for the three commercial uses fronting on Grassy Plain Street pursuant to the terms of a variance. (ROR 29, p. 4.) The southern most of the three parcels, also owned by Fernandes, fronts on Grassy Plain Terrace to its south for a distance of approximately two hundred thirty-two feet including in its length the parking strip. Continuing westerly along Grassy Plain Terrace are several single-family homes all located in the residence R-10 zone and all abutting the B E parcels to their rear or rear side. (ROR 1, appendix A2.)
On March 26, 2007, the applicants filed the first of two applications for an amendment to the zoning map pursuant to § 118-57 of the zoning regulations of the town of Bethel (regulations) (ROR appendix H) and General Statutes § 8-3(c). The application requested a change of zone from residence R-10 to commercial C for the following parcels: the rear portions of the two B E parcels, 37 and 39 Grassy Plain Road, labeled as plots 2 and 3 respectively on Proposed Zone Change Map prepared for the applicant (Verdi map); the rear portion of the Exxon Mobile Corporation parcel, 33 Grassy Plain Road, labeled as plot 1 on the Verdi map; and the one hundred fifty-foot-long parking strip owned by Fernandes to the rear of the three commercial properties lying to the south, labeled as plot 4 on the Verdi map. (ROR appendix A2.) Together with the application for amendment to the zoning map, the applicant filed an application for site plan approval for a three-story building containing mixed commercial and residential use. The first floor of the premises would house the commercial uses and the second and third floor would accommodate thirty one-bedroom residential rental units. At an adjourned public hearing on July 24, 2007 the applicant withdrew the site plan application and indicated that it wished to proceed solely with the zone change application before submitting a revised site plan application. (ROR 62, p. 1.) After a public hearing on the application, the commission, at a meeting on July 24, 2007, voted to deny the application. In its written denial dated August 1, 2007 the commission stated the following reasons:
Plot 1
The commission does not believe that it's appropriate to allow a Commercial parcel to gain access to a residential street whereas the current map (current zoning map of the Town of Bethel) would not allow that access.
Plot 2 3
The proposed change is not in accordance with the neighborhood, Plots 2 3 cannot stand on their own as a Commercial development because the 10 foot buffer area renders the rear portion to narrow.
Plot 4
The proposed change absent the change for plots 1, 2 and 3 serves no practical reason from it's current residential use.
(ROR 60.)
On August 30, 2007, the applicant submitted a second application for an amendment to the zoning map as well as an application to amend the zoning regulations. The application to amend the zoning map was identical to the first except that it withdrew from consideration plot 4 on the Verdi map, the one hundred fifty-foot Fernandes parking strip. The accompanying application to amend the zoning regulations sought to add a provision to the regulations to prohibit access to commercial and industrial parcels from streets upon which such parcels lack the required frontage. The reason for the amendment to the regulations as expressed in a letter from the applicant's counsel dated August 30, 2007 accompanying the application was to quell the concerns of neighbors and commission members "that commercially-zoned lots with minimal side or rear frontage on residential streets may utilize that frontage for secondary access purposes, thus introducing commercial activity to residential neighborhoods." (ROR 63.) The amendment spoke directly to the stated reason for denial of the first application with regard to plot 1, the Exxon Mobile parcel, that access to that parcel through a residential street was not appropriate.
A public hearing on the new applications was held on October 23, 2007. At that time the commission incorporated the entire record from the first application into the record of the second application. (ROR 79, p. 8.) The transcripts of the hearings support the following findings. Grassy Plain Street is a commercial corridor. Within close proximity of the premises are a hair salon, four restaurants, a car wash, Bethel Power Equipment, a shopping center and three banks. The Bates Monument building is located on the northern most of the B E parcels, 37 Grassy Plain. The southern most of the B E parcels, 39 Grassy Plain, contains the offices of Resitech, several apartments and, in the rear on the residence R-10 zoned portion, a three-bay metal garage. (ROR 29, p. 15.) The premises for which the amendment from residence R-10 to commercial C zone change is sought covers an area of 58,550 sq. ft. or 1.34 acres. It is a quadrilateral approximately between three hundred forty-six feet and four hundred feet deep and between one hundred forty-eight feet and one hundred seventy feet wide. It is bounded on the east by the remaining commercial C zoned portions of each parcel. It is bounded on its remaining three sides by residence R-10 zoned properties improved with single-family homes on Grassy Plain Terrace and Fleetwood Park Road. (ROR 14, 69, appendix A2.) As a practical matter the rear portions of the B E parcels are unusable for the purposes for which they are currently zoned. Rear lots in a residence R-10 zone cannot be served by an access way and the creation of a fifty-foot roadway to serve the rear lots would preclude the possibility of any commercial use of the front portion of the lots. (ROR 29, p. 17.)
Bethel's Grassy Plain corridor in which the premises lies was identified in its 1997 and 2007 plans of Conservation and Development as an area appropriate for transit oriented development, which is moderately dense residential development that integrates transit options that provide access to the train station by modes that are not dependant on automobiles, and mixed commercial and residential uses that incorporate easy access to retail, restaurant and recreational opportunities. (ROR 79, p. 5.)
The public hearing was closed and the commission went into deliberations on November 13, 2007 and November 27, 2007. On November 27, 2007 the commission unanimously approved the application to amend the zoning regulations and by a vote of six to one approved the application to amend the zoning map. In its written notice of its decision the commission stated the following reasons for its approval of the amendment of the zoning map.
1. The zone change is consistent with the comprehensive plan of the Town of Bethel.
With regards to the delineation of zone lines throughout the Town, the Official Zoning Map shows that all zone lines generally adhere to the boundaries of properties. In fact, all zone lines in the Industrial Zone, the Commercial Industrial Zone and the Commercial Zone adhere to the property boundaries except for the three (3) subject parcels, which have portions in the Residential R10 Zone. Therefore, the proposed change of the commercial zone line to adhere to the property boundaries is consistent with the comprehensive plan.
The zoning regulations require minimum buffer areas to protect residential neighborhoods from adjacent commercial activity in all of the commercial and industrial zones. Specifically, Section 118-35A(4) states that in the Commercial "C" Zone, there shall be a landscaped or natural buffer of 10 feet from a side lot line and 20 feet from a rear lot line to separate dissimilar uses. The residential properties abutting the proposed zone change area will be afforded the same protection from commercial activity as all other residential properties that currently about the "C" Zone. Therefore, the proposed zone change is in conformance with the comprehensive plan.
2. The zone change is consistent with the both the 1997 and 2007 Plans of Conservation and Development (POCD) of the Town of Bethel.
In Section 10.2, on pages 118 and 119, of the 1997 POCD, there is a description of the area where the subject parcels are located which is noted as the Whitney Road/Fleetwood Avenue to Beach Street area. In summary it states, "In general, this section of downtown is dominated by automobile-related uses and discourages pedestrian friendly activity due to the suburban nature of the building layouts and distribution." Furthermore, it states that while that area is a positive visual feature being the western gateway to downtown, "it presents a generally unattractive image with few distinguishing buildings and minimum landscape treatment."
On page 118, reference is made to the future development of that area. It states, "The downtown's capacity for additional development will likely lie in small improvements whose overall impact, if handled correctly, will be greater than the sum of the increments. In the downtown (and also at the gateway intersections of Routes 302 and 53, and Greenwood Avenue and Nashville Road) there will be opportunities for infill development, greater site utilization, and building reuse." Later on page 118 it states, "The Planning Zoning Commission should study the existing zoning to determine how it might be changed so that the future development builds upon the established traditional commercial character."
The recently adopted 2007 Plan of Conservation and Development identifies the area where the subject parcels are located as suitable for " Transit Supported Development." On page 70 of the POCD it states, "In addition to transit-oriented developments, there may also be locations appropriate for moderately dense residential development (approximately 10 to 15 units per acre) that integrates transit options by providing access to the train station by shuttle van, bus, bike, pedestrian paths, and other non-auto dependent transportation modes. The transit-supportive development locations should be identified and zoned appropriately, allowing for denser development with low parking ratios than used in more suburban districts which are strictly dependent upon automobiles for transportation." It goes further stating, "In particular, the area along Grassy Plain north of Greenwood Avenue should be examined as a potential location for transit-supported development. This area already has a mix of uses and is served by public water and sewer."
The Future Land Use Plan Map in the 2007 POCD identifies the subject parcels as within the Transit Oriented Development or mixed-use area. Under the heading "Descriptions of Future Land Use Categories" and the sub-heading "Business Areas" on page 122, mixed-use and transit oriented is described as "Areas of high density residential, retail, office, and restaurants." The Commission believes that the proposed zone change will allow for a future development pattern that is consistent with the recommendations outlined in both the 1997 and 2007 Plans of Conservation and Development.
3. Even though the majority of two of the three individual parcels is zoned residential R-10, there is no possibility for residential development that can be accomplished within the zoning regulations for the R-10.
Each parcel is partially zoned residential R-10 at the rear of the property. The R-10 Zone allows one single family dwelling on minimum 10,000 sf. lot with a minimum lot width of 80 ft. on a public street. The parcel at 37 Grassy Plain Street is .823-acres or 35,850 sf. in size and 60 feet in width. It has 21,881 sf. or 61% of its total property area located in the R-10 Zone. 39 Grassy Plain Street is .807-acres or 35,153 sf. in area and 60 ft. in width. It has 22,848 sf. or 64% of its total property area located in the R-10 zone.
While there is enough residential zoned land to create a lot behind each commercially zoned area, the zoning regulations would not allow a subdivision of either parcel for the following reasons:
1) Neither parcel has the 80 ft minimum width required for a new lot.
2) Neither parcel has the 80 ft of frontage required on a public street.
3) The zoning regulations do not permit real lots in the R-10 Zone.
Furthermore, if it were possible to develop a subdivision in the R-10 portion of the property, the requirement of a 50 ft. right of way would effectively eliminate one of the commercially zoned areas of one of the properties. This would be an undesirable consequence and contrary to future development goals for commercial zoned properties as outlined in the 1997 and 2007 Plans of Conservation and Development.
4. Considering that the two of the three properties have their sole frontage and potential access to Grassy Plain Street, a state road known as Route 53, and in the middle of an established commercial corridor, the Commission believes that coordinated development of each property for mixed use and/or commercial purposes are more appropriate uses of the properties than separated residential and commercial uses coexisting on the same properties.
5. The flexibility of the Commercial "C" regulations in permitting a mix of uses including residential, will more appropriately guide future development of the subject parcels rather than the application of traditional residential development regulations competing with commercial guidelines on the same parcels of land.
(ROR 75.)
As a result of this decision the plaintiffs commenced the present appeal. In the course of the preparation of the return of record, defendant commission's counsel discovered that due to a malfunction of the commission's recording equipment the commission was unable to produce a transcript of either of the two commission deliberation sessions held on November 13, 2007 and November 27, 2007. However minutes of each meeting are made a part of the record. The minutes reveal that on November 13, 2007 the commission had a general discussion of the merits of the application before a motion was made and passed to table the item until the next meeting. (ROR 73, p. 3.) On November 27, 2007 the commission first considered the application to amend the zoning regulations. The application passed unanimously. The commission then considered the application to amend the zoning map which passed by a vote of six to one with Commissioner Shannon casting the sole vote in opposition. (ROR 74.)
Because the commission could not produce transcripts of the deliberation sessions, counsel for the plaintiff on August 8, 2008 filed a motion for judgment or in the alternative for permission to conduct discovery or introduce evidence. In an attempt to remedy the matter and to assist in recreating a record, counsel for the applicant, Attorney DeGalan, had written summaries of both sessions prepared from her notes. She provided these to the commission and to plaintiff's counsel on October 9, 2008. On November 3, 2008 counsel filed a motion to supplement the record with these summaries and advised the court that she had provided copies to the commission. On November 10, 2008 the court, Shaban, J., heard argument on plaintiff's motion and in a memorandum of decision issued on March 19, 2009 issued the following order.
This court has the discretion to remand the present appeal and does so for the limited purpose of having the Commission conduct its deliberations anew so as to establish a record thereof. In that the record of the public hearings for the submission of comment and evidence is not in issue, only those matters and deliberations considered at the November 13, 2007 and November 27, 2007 meetings need be addressed. While the court recognizes that it has the authority under General Statutes § 8-8(k) to allow any party to introduce evidence of proceedings of the board in addition to the contents of the record, because the nature of those meetings involve the reasoning of the members of the Commission, the court believes the more sound approach would be for the Commission members themselves to state the basis of their decision in their normal setting and manner . . . Also, to have the parties present a written summary as proposed by the defendants, no matter how well intended and earnest they may be, would unnecessarily run the risk of prejudice given their interest in the outcome of the matter. Hence, the best approach would be for the Commission to create the record of its members' discussion and deliberations in the forum and procedure to which they are accustomed. Because of the circumstances of this case, the court believes the better course is to establish a transcript of the Commission's deliberations in order to afford a meaningful review of the record, rather than creating the record subsequent to the Commission's decision.
NeJame v. Planning and Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV08 4008308 (March 19, 2009, Shaban, J.).
The re-deliberation hearing was held by the commission on May 5, 2009. Prior to the session counsel for the commission, Attorney Andres, delivered a letter to counsel for the plaintiff, Attorney Taborsak, dated March 31, 2009. Andres proposed that Taborsak prepare his own summaries of the commission deliberation sessions held on November 13, 2007 and November 27, 2007 which Andres would then submit to the commission at the upcoming re-deliberation session. (ROR 84.) Taborsak responded strongly by letter dated May 4, 2009 that he believed such violated the spirit of Judge Shaban's orders, that the submission of DeGalan's summaries to the commission had tainted the proceedings and that the only reasonable solution was a hearing de novo on the application. (ROR 85.) Andres responded in turn by letter dated May 5, 2009 sharply criticizing the timing of Taborsak's response, defending the submission of the DeGalan summaries to the commission and rehashing the arguments presented to Judge Shaban. Andres concluded his correspondence with the statement, "In accordance with the Court's decision, I intend to recommend that the Commission conduct its deliberations anew, without reliance on any written summaries." (ROR 86.)
At the opening of the re-deliberation session Andres, as attorney for the commission, addressed the members by advising them of the court's decision, submitting to them a copy of the decision and advising them that they were to "deliberate anew . . . not to re-decide the case" but to "fill in the gap of what the deliberations were leading to that decision." (ROR 91, p. 3.) Andres then chose to place into the record before the commission copies of the letters exchanged between himself and Taborsak. Further, rather than admonish the commission members that they were not to rely on the written summaries prepared by DeGalan as he had so advised Taborsak that he would, he told them, "I provided those [DeGalan summaries] to you and you looked at them and I believe you thought they were substantially accurate, that was last year." (ROR 91, p. 4.) He continued to expound, "I thought that since one side had been given the opportunity to provide this it was only fair that the plaintiffs themselves if they believed there are any additions or corrections that should be made that they would have that opportunity . . . I asked them to get back to me within a certain time frame and just yesterday I did get a letter back and what he says in this letter is essentially that he does not want to provide any summaries and corrections or additions . . . I thought just to be fair if he thought there were errors and omissions he should be provided the opportunity, he declined that opportunity. [T]hey decided not to do that." (ROR 91, p. 4-5.)
At the conclusion of Andres' remarks the commission began the re-deliberations. At the suggestion of the chairman each of the commission members took a turn reading one of the five stated reasons for the application approval. After each of the five reasons was read a discussion ensued during which the various commission members were free to express their individual recollections of the significance of the stated reason in their decision on how to vote, the thought process in arriving at the decision and any other recollection of the deliberations or their own personal decisional process that each believed was relevant to reconstruct the record and fulfill Judge Shaban's directive. (ROR 91, 6-17.) Commissioner, Dick Shannon was advised that he did not have to "poll" on any of the stated reasons since he cast the sole negative vote. Interestingly at that point Shannon had already asserted his agreement with the first stated reason of the commission in its approval of the application. (ROR 91, 8.) Shannon offered no other comments during the discussion and there is nothing in the record to suggest that he was prevented or discouraged from participating. When question by Andres on why the commission tabled the deliberations commenced on November 13, 2007 until the November 27, 2007 session several commission members responded that the commission believed that the better policy in rendering a decision on a matter which has had several adjourned public hearing is for all commission members who have attended, or read the minutes of meetings which they did not attend, to be present for the final vote. Commissioners expressed their belief that this practice was the fairest to the applicant and confirmed that it has been their consistent past practice and policy. (ROR 91, p. 18-19.)
The plaintiff brought this appeal claiming that the commission acted illegally, arbitrarily and in abuse of its discretion in multiple instances. Plaintiffs' amended complaint dated September 3, 2009 cites sixteen instances of error. Some of these have not been pursued and briefed, others have been consolidated. Any issued raised in the plaintiffs' complaint but not briefed and argued will be deemed abandoned. Martel v. Metropolitan District Commission, 275 Conn. 38, 51-52, 881 A.2d 194 (2005); Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Plaintiffs, in their brief and at argument, allege the following bases of appeal: (1) the commission's receipt of ex parte communications and the improprieties which occurred during the court-ordered re-deliberations tainted the proceedings and acted to the prejudice of the plaintiffs; (2) the amendment to the zoning map was not in conformance with the comprehensive plan and the court may not consider reasons two through five as stated by the commission in its decision to determine if such provides a basis for the commission's decision; (3) the amendment to the zoning map constitutes spot zoning; (4) the commission chairman was biased and predetermined to grant the application; (5) there is no material change in the application upon which the commission acted from the prior application which was denied.
The plaintiff has not challenged the commission's decision to grant the application to amend the zoning regulations to add a provision to the regulations to prohibit access to commercial and industrial parcels from streets upon which such parcels lack the required frontage.
DISCUSSION
An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "It is well settled that a court in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Id. "Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 675 A.2d 917 (1996), the court stated: "Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id., 354.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] 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 [board]'s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). See also Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996). "[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marked omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
I
The court will first consider the plaintiffs' contention that the commission's receipt of ex parte communications and the improprieties which occurred during the court-ordered re-deliberations tainted the proceedings and acted to the prejudice of the plaintiffs. The plaintiffs have raised four separate issues, namely: (1) the submission of the DeGalan summaries to the commission in October 2008, (2) Attorney Andres' remarks concerning the DeGalan summaries to the commission at the start of its re-deliberation session on May 5, 2009, (3) Commissioner Shannon's participation during the re-deliberation session, and (4) the propriety of the commission's action in tabling the application on November 13, 2007 to November 27, 2007 so that there would be a full complement of commissioners present for a vote on the application.
The plaintiffs assert that the receipt of the DeGalan summaries by the commission in October 2008 are ex parte communications which have tainted the proceedings before the commission and for which the only appropriate remedy is for the court to sustain the appeal or remand the matter to the commission for a hearing de novo. The court first notes that the plaintiffs' reliance on Blaker v. Planning Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989) is misplaced. Blaker involved the submission of an opinion letter to the commission which had not been provided to opposing counsel after the close of public hearings but before the commission rendered a decision. In the present case, the commission had already rendered a decision on the merits prior to the receipt of the DeGalan summaries. Further the Blaker court held that the proper remedy once the existence of an improper ex parte communication had been established was to shift the burden of proof to the party seeking to uphold the validity of the commission's decision to demonstrate that the ex parte communication had not acted to the prejudice of the party appealing the decision of the commission. Second, and more importantly however, the plaintiffs are in large part requesting this court to reconsider Judge Shaban's ruling on their motion for judgment. In fact the plaintiffs question whether "the deliberations could ever have been conducted `anew' per Judge Shaban's order." (Plaintiffs' second amended brief dated April 26, 2010.) The court was aware of the DeGalan summaries at the time plaintiffs' motion for judgment was argued in November 2008 and there is no new information which was not available to the court at that time. This court considers the matters which have been briefed, heard and ordered by Judge Shaban as the law of the case and will not revisit them. See Burton v. Stamford, 115 Conn.App. 47, 63, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).
This court however is not precluded from considering the issue of the DeGalan summaries in the context of how they may have been used at the re-deliberation hearing in May 2009. In fact, this now leads into the next issue raised by the plaintiffs, i.e., Attorney Andres' remarks at the start of the re-deliberations and his introduction of the letters between Attorney Taborsak and himself to the commission. In light of Judge Shaban's clear directive and his observation that "to have the parties present a written summary . . . would unnecessarily run the risk of prejudice given their interest in the outcome of the matter" it is difficult to imagine what Andres had in mind when he not only reminded the commission members of their prior review of the summaries but submitted copies of the three letters between himself and Taborsak and talked at some length about his disagreement with Taborsak. The court finds Andres' explanation of his conduct offered during argument of this matter wholly unsatisfactory. Whether it was an attempt to discredit Taborsak before the commission or an innocent and unfortunate lapse of judgment, the court finds it improper. That having been said, the next important issue for the court is whether Andres' conduct has resulted in prejudice to the interest of the plaintiffs. The purpose of the re-deliberation session was to reconstruct a record upon which the parties could argue the appeal. To that end the commission used not the DeGalan summaries but rather their own written notice of decision as a starting point. As the court has already noted, after each of the five reasons in the decision was read, the commission members went into a discussion of their individual recollections of the significance of the stated reason, their thought process in arriving at the decision and any other recollection of the deliberations or their own personal decisional process that each believed was relevant. The commission members made a diligent effort to reconstruct a record. Neither the DeGalan summaries, nor Andres' comments nor the introduction of the correspondence between Andres and Taborsak appeared to have played any role in that process. The court cannot find that the re-deliberation process was tainted by the conduct of Andres or that the plaintiffs have been prejudiced.
With regard to the participation of Commissioner Shannon in the re-deliberations, the court cannot find anything in the record to support the plaintiffs' contention that he was prevented from speaking or otherwise contributing. As the court has already noted Commissioner Shannon in fact lent his affirmative endorsement to the commission's first stated reason for granting the application. His failure to state any further reasons on the record for his vote to eventually deny the application does not render the process flawed.
Finally with regard to the commission tabling the motion to approve the application at its November 13, 2007 meeting to its November 27, 2007 so that the full complement of commissioners would be available to vote, the court can find nothing improper. It does not appear that the commission had any improper motive in tabling the vote. The commission's stated policy was, if possible, to have a full complement of commissioners who had heard the application to sit when the application came up for a vote. We presume regularity in the proceedings of a municipal body. "We give to lay administrative boards wide discretion on the inner workings of their bodies as long as no regulation or statute is violated." Belanger v. Planning Zoning Commission, 64 Conn.App. 184, 192, 779 A.2d 833 (2001). "[A]ll deliberative bodies have a right to reconsider their proceedings during a session as often as they think proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done." Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 565, 236 A.2d 96 (1967). "Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954). The court finds the commission's decision to table the motion until following meeting well within its discretion in the conduct of its proceedings.
II
The plaintiff contends that the amendment to the zoning map was not in conformance with the comprehensive plan and that the court may not consider reasons two through five as stated by the commission in its decision to determine if such provides a basis for the commission's decision.
When a zoning authority enacts or changes a zoning regulation or zone classification, it acts in a legislative capacity and its action is subject to only limited review. D J Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 450, 585 A.2d. 1227 (1991). "In such circumstances, it is not the function of the court to retry the case. Conclusions 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 agency . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." (Citations omitted.) Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). "The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." (Citations omitted; internal quotations omitted.) Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991). "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record . . ." (Internal quotation marks omitted.) Id., 544. This means nothing more than the record must show that it was at least a possibility that the goal which the authority sought to advance or the mischief which it sought to prevent could be accomplished by the action that it took. See Kaufman v. Zoning Commission, 232 Conn. 122, 155-56, 653 A.2d 738 (1995).
Pursuant to General Statute § 8-3(c), the authority is required to "state upon its records the reason why such change is made." If it fails to give a formal collective statement of reasons, its action is not invalid, but the court must "search the entire record to find a basis for [its] decision." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 514, 636 A.2d 1342 (1994). If any one of those reasons is reasonably supported by the record and is pertinent to any one of the purposes of zoning set forth in General Statute § 8-2, then the appeal must be dismissed. See Burnham v. Planning Zoning Commission, 189 Conn. 261, 265-67, 455 A.2d 339 (1983). In the present case, the commission has provided five separate reasons, some of them rather copiously elaborated upon, in its written decision. (ROR 75.) Contrary to plaintiffs' contention, the court can find no basis to limit its review to the first of these stated reasons to the exclusion of the remaining four.
In reviewing the action of a zoning commission in enacting amendments to its zoning regulations and maps "[t]he test of the [legislative] action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [the city's enabling legislation]. . ." (Internal quotation marks omitted.) Campion v. Board of Aldermen, 278 Conn. 500, 527, 899 A.2d 542 (2006). "A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community . . . It is established that the comprehensive plan is to be found in the zoning regulations themselves and the zoning map, which are primarily concerned with the use of property." (Citation omitted; internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 584-85, 930 A.2d 1 (2007). "[T]o the extent that the commission . . . [acts] to improve the economic conditions of the town and to increase quality retail and commercial development . . . such reasons are valid because they are reasonably related to the police powers enumerated in General Statutes § 8-2 to promote health and the general welfare." Orange Residents Association v. Town of Orange, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0078978 (August 6, 2003, Cremins, J). Further, General Statutes § 8-3(b) provides that in entertaining any application to amend the zoning regulations and boundaries "the commission shall take into consideration the plan of conservation and development."
The commission in its decision specifically found that (1) the change of zone boundary is consistent with the comprehensive plan; (2) zone lines in the industrial zone, the commercial industrial zone and the commercial zone adhere to property boundary line except for the three subject parcels which are bisected by the zoning line; (3) a change of the zoning map to conform to the boundary lines of the parcels would provide an adequate buffer to the neighboring residence R-10 properties, the same protection that all other residential properties which border commercial C zone in town currently enjoy; (4) coordinated development of all three parcels for mixed commercial and residential use is more appropriate than the divided use co-existing on the same property; (5) the flexibility of the commercial C zone regulations in permitting mixed uses, including residential, will more appropriately guide future development rather than the application of traditional residential and commercial regulations competing on the same parcels; (6) the future land use plan map in the 2007 plan of conservation and development identifies the parcels as within the transit oriented development or mixed use area which is suitable for "areas of high density residential, retail, office and restaurants"; (7) a change of the zoning map would allow for a future development pattern consistent with the 1997 and 2007 plans of conservation and development. (ROR 75.) The court finds that the record adequately supports the defendant commission's findings and that the findings legitimately support the commission's action in granting the application to amend the zoning map.
III CT Page 15484
The plaintiffs contend that the change of zone of the subject parcels constitutes illegal spot zoning. Spot zoning is "impermissible in this state." Campion v. Board of Aldermen, 85 Conn.App. 820, 849-50, 859 A.2d. 586 (2004), rev'd on other grounds, 278 Conn. 500, 899 A.2d 542 (2006). Spot zoning had been defined as "the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood . . . Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole . . . The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a [comprehensive] plan." (Citation omitted; internal quotation marks omitted.) Id., 849 n. 21.
Citing two widely regarded authorities, Robert A. Fuller, 9 Connecticut Land Use Law and Practice (3d ed. 2007) § 4:8 and Terry J. Tondro, Connecticut Land Use Regulation, (2d ed. 2000 sup.) p. 70, it is the position of the defendant, the applicant, that the concept of spot zoning has become obsolete and that in any case in which the change of zone is in conformance with the comprehensive plan the size of the subject parcel is irrelevant. Counsel for the defendant, commission, concurs and points out that there are adequate safeguards in place for any future use of the parcel because the commercial C zone would require a special permit for any building exceeding 1,000 sq. ft., a procedure which "affords ample protection to anyone who may be immediately affected." (Internal quotation marks omitted.) Loh v. Town Planning Zoning Commission, 161 Conn. 32, 36, 282 A.2d 894 (1971).
The court believes there may be some continuing vitality to the issue of spot zoning and notes the recent appellate case of Gaida v. Planning Zoning Commission, 108 Conn.App. 19, 947 A.2d 361 (2008). In the present case, the subject property consists of three parcels of land and the area affected by the change of zone comprises 1.34 acres. The parcels are bisected by the zone line into commercial C and residential R-10. In Gaida the property in question consisted of a single parcel which, like the subject property here, was bisected by a zoning boundary line dividing the property into light industrial (the larger portion) and residential (the smaller portion). The commission granted the application to rezone the entire parcel residential, stating that the change was necessary in order to have the zoning scheme in line with property boundaries. The trial court found that the first prong of the spot zoning analysis, namely that the zone change effected a small piece of land, had been met but the second prong had not because the change was in conformance with the comprehensive plan. On review the appellate court found that the stated reason for the zoning line change was not reasonably supported by the record because although the goal of conforming lot lines to zoning lines by the extension of a zoning district was a legitimate goal, the commission acted to affect only one single parcel of land while leaving other similarly situated parcels of land untouched. Gaida v. Planning and Zoning Commission of the Town of Shelton, supra, 34-35. The Gaida court relied upon the following reasoning. "Although we recognize that not every extension of an existing district is, ipso facto, a compliance with a comprehensive plan and consequently not spot zoning . . . [t]he ultimate test is whether, upon the facts and circumstances before the zoning authority, the extension is, primarily, an orderly development of an existing district which serves a public need in a reasonable way or whether it is an attempt to accommodate an individual property owner . . . Konigsberg v. Board of Aldermen, supra, 283 Conn. 592-93, quoting Wade v. Town Plan Zoning, 145 Conn. 592, 596, 145 A.2d 597 (1958)." (Internal quotation marks omitted.) Id., 33.
In the present case the change of zone line to conform to the boundary line affects three parcels, apparently the only three remaining parcels in the town's industrial zone, commercial industrial zone or commercial zone which are bisected by a zone line. In addition all of the other stated reasons in the commission's decision, in particular that the change would bring the parcels into conformance with the 1997 and 2007 plans of conservation and development, speak to the goal of promoting the orderly development of an existing district in a way which serves a public need. The court finds that the change of zone is a logical extension of an existing district and is not an instance of illegal spot zoning.
IV
The plaintiffs assert that "the court should find that the Chairman's predetermination invalidated the action of the Commission, or at least his vote, which has the same effect." (Plaintiffs' second amended brief dated April 26, 2010.) In support of their claim plaintiffs point to remarks made by chairman Olson at a public hearing on July 24, 2008 in which he said, "my basic philosophy is that zone lines should not bisect lots . . . I think it makes it incredibly difficult for us and for the property owners to determine what requirements apply and where they would apply so I would be in favor of Plot 2 and Plot 3, of making the entire thing commercial." (ROR 62, p. 4.)
To prove predisposition, the plaintiff must show that the authority members had made up their minds in advance that they were going to vote a certain way regardless of the evidence and arguments presented at the public hearing. Daviau v. Planning Commission, 174 Conn. 354, 358, 387 A.2d 562 (1978). Members may come into the hearing with preconceived opinions as long as they have not made up their minds irrevocably. Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989), overruled on other grounds by, Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 579-81, 715 A.2d 46 (1998).
With respect to Commissioner Olson, there is no evidence that he had any financial interest in the outcome of the application or any disqualifying relationship with any opponent of the application. The only evidence of any personal interest on his part was his expression of his opinion that zoning district lines should run along lot lines. "[Our Supreme Court has] held that [t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true. Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970)." (Internal quotation marks omitted.) Cioffoletti v. Planning Zoning Commission, supra, 555. The plaintiffs have failed to set forth facts sufficient for this court to conclude that Commissioner Olson had either predetermined the outcome of the application or that he was biased toward the applicant.
V
The plaintiffs' final claim is that there is no material change in the application upon which the commission acted from the prior application which was denied and that the appeal on that basis should be sustained because the commission's action was arbitrary. "A local zoning authority, however, acts in a legislative capacity when it enacts or amends its regulations . . . In acting, such a legislative body must be relatively free to amend or modify its regulations whenever time and experience have demonstrated the need for a revision . . . The board, acting in a legislative capacity, was, therefore, not bound by the general rule which would prohibit it from reversing an earlier decision without evidence of a change in conditions . . . The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board . . . which serves a quasi-judicial function . . . Thus, although we have said that a zoning commission should not ordinarily alter the classification of a certain area in the absence of changed conditions, it is clear that this rule, which is a restriction on the principle of legislative discretion, will only be applied in those rare instances where the zoning amendment is patently arbitrary." (Citations omitted; internal quotation marks omitted.) Morningside Ass'n. v. Planning Zoning Board, 162 Conn. 154, 157-59, 292 A.2d 893 (1972).
The court finds the plaintiffs' argument unpersuasive. Although the second application followed the denial of the first application by scarcely a week, there were two very significant changes in circumstances between the two. First the commission had before it an accompanying application to amend the zoning regulations to prohibit access to commercial and industrial parcels from streets upon which such parcels lacked the required frontage. The commission considered and acted to approve such application prior to considering the instant application to amend the zoning map. Second, the instant application did not seek a change of zone of plot 4, the Fernandes parcel. Thus a major concern of the commission, secondary access to the rezoned parcels through the residential streets, Grassy Plain Terrace from the Fernandes parcel and Fleetwood Park Road from the Mobil Oil Corporation parcel, had been eliminated. The court finds that there were significant changes in circumstances since the original application and that the commission did not act arbitrarily.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiffs have not sustained their burden of demonstrating that the granting of the application to amend the zoning map was illegal, arbitrary or in abuse of the discretion vested in the commission. The appeal is therefore dismissed.