Opinion
No. CV 09-5033698-S
July 20, 2010
MEMORANDUM OF DECISION
I
The plaintiff, North Colonial Associates, LLC, appeals the decision of the defendant, the Zoning Commission of the town of Canton ("commission") to deny the plaintiff's application for a special exception to conduct truck and heavy equipment repair in a light industrial district immediately adjoining residentially zoned property.
This appeal arises from the denial of the third in a series of applications seeking to obtain a special exception for the above use at the subject property, 20 Colonial Road in the town of Canton. The original application was withdrawn by the plaintiff on January 16, 2008. A second application was filed on March 25, 2008 and denied by the commission on October 15, 2008. The plaintiff did not appeal the commission's denial of that application.
After modifying the application in response to the prior denial, the plaintiff filed the application at issue in this appeal on April 7, 2009. That application proposed the following activities in the southwesterly portion of the subject property: 1) the construction of a proposed building to be used for automobile repair, including the repair of commercial vehicles, trucks and equipment, and for the office of the repair business; 2) a sanitary sewer connection from the proposed building to the public sewer located in Colonial Road; 3) the installation of an oil-water separator; 4) new pavement and/or concrete apron/pad near the proposed building; 5) the installation of a stockade fence approximately ten feet high from the northwest corner of the building along the west side of the concrete pad; and 6) connect the roof leader from the proposed building to the existing catch basin.
At its April 15, 2009 meeting, the commission concluded that, although the application appeared to be modified only slightly from the previously denied version, it would nonetheless be treated as a new application. Consequently, a public hearing on the matter was scheduled for June 17, 2009 and the application was referred to the design review team for review and recommendations. At the public hearing, the commission heard discussion in favor of the application from the plaintiff's attorney, and received the report of the plaintiff's noise expert, Allan Smardin of HMB Acoustics. Following the opposition testimony of three nearby landowners, the hearing was continued to July 15, 2009. At that hearing, the commission heard Smardin's overview of his noise report, then questioned him as to his findings. Also before the commission that night was a series of property owners appearing in opposition to the plaintiff's application. At the conclusion of the July 15th hearing, the public hearing was closed.
On August 19, 2009, the commission moved to retain ARKF Environmental and Planning as a third-party expert to perform a peer review of Smardin's report. At its September 16, 2009 meeting, the commission voted unanimously to deny the plaintiff's application. In its decision, the commission concluded that the plaintiff's application did not comply with the criteria of § 52 of the Canton zoning regulations.
Following that decision, the plaintiff initiated this appeal pursuant to General Statutes § 8-8. Specifically, the plaintiff argues that the commission acted illegally in the following ways: 1) by finding that the application was merely a resubmission of a prior application that had been denied; 2) by engaging in spot zoning; 3) by making a finding that the term "automobile repair" does not include the repair and/or maintenance of commercial vehicles, trucks and equipment; 4) by finding that it did not have enough time to completely review the application for compliance and by finding that the plaintiff had restricted the commission from obtaining pertinent information; 5) by rejecting the report, testimony and conclusions of the plaintiff's noise expert when there was no evidence in the record or properly received by the commission that would establish a factual basis for undermining either the credibility of or the conclusions reached by Plaintiff's noise expert; 6) by denying the special exception based upon reasons not supported by the record, not pertinent or germane to the proper considerations it was required to apply, and for only vague and general reasons; and 7) by using improper standards and criteria in denying site plan approval. For these reasons, the plaintiff argues that the court should order the commission to approve the plaintiff's application.
Because the court upholds the commission's decision denying the special exception, it is not necessary to discuss the merits of the plaintiff's claim that the commission acted illegally in failing to approve the site plan.
II
General Statutes § 8-8 governs appeals taken from the decisions of zoning commissions to the Superior Court, providing in relevant part: "[A]ny person aggrieved by any decision of a board, including a decision to approve or deny . . . a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6 . . ." "The question of aggrievement is essentially one of standing." McNally v. Zoning Commission, 225 Conn. 1, 7, 621, A.2d 279 (1993). "Unless the plaintiff alleges and proves aggrievement, his case must be dismissed." Fuller v. Planning Zoning Commission, 21 Conn.App. 340, 343, 573 A.2d 1222 (1990). In the present case, the parties have stipulated that the plaintiff is an aggrieved party, and the plaintiff has submitted the deed to the subject property as evidence of ownership. Accordingly, the plaintiff has standing to bring this appeal.
III
The plaintiff argues that the defendant acted illegally by finding that the application was merely a resubmission of a prior application that had been denied. The defendant counters that the plaintiff failed to appeal the denial of the prior application, and therefore cannot raise similar issues in a subsequent proceeding. Nonetheless, the defendant argues in the alternative that it did not deny the present application as a mere resubmission, and in fact treated it as a new application.
"A zoning board has the power to consider a second application for a special exception involving the same subject matter when the applicant files a subsequent plan which has been substantially changed to address the objections raised by the board in denying the original application." Shippee v. Zoning Board of Appeals, 39 Conn.Sup. 436, 438, 466 A.2d 328 (1983). Here, after the plaintiff's original application was withdrawn, the second application was submitted on March 25, 2008 and denied on October 15, 2008. On April 7, 2009, the plaintiff submitted the application at issue, in which it addressed several points of concern noted in the original denial. The plaintiff modified the application so that the requested use would be confined to a smaller portion of the property and minimized the extent of excavation that would be required on the lot, the request to expand and/or relocate the parking and storage was eliminated, and it proposed the construction of a noise barrier in the form of a stockade fence. The court finds that these changes, inter alia, were specifically targeted at addressing the defendant's objections to the original application, and therefore resulted in a substantially changed application.
The question then becomes whether the defendant actually treated the application in question as a new one, or denied it as a mere resubmission of a prior application. General Statutes § 8-3c provides in relevant part: "(b) The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2 . . . Such hearing shall be held in accordance with the provisions of section 8-7d . . . Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision . . ."
The record is clear that the defendant treated the plaintiff's application as a new one. The application was processed and referred to the design review team for review and recommendations, evidence was accepted into the record, and a public hearing was held. There is no allegation that the public hearing or decision by the board failed to comply with General Statutes §§ 8-3c and 8-7d. While the plaintiff persuasively argues that the second application was substantially different from the first, it fails to provide any evidence that the defendant procedurally treated the application as anything but new. Instead, the plaintiff simply concludes that the defendant failed to give a fair and full hearing on the merits of the new application because it came to the same conclusion as it did for the previous application. While the commission's decision includes a heading titled "Resubmission," it does not reflect upon the procedure applied to the application; rather, it merely concludes that the application failed to satisfactorily address the findings and reasons stated in the denial of the prior application. Accordingly, the court finds that the application at issue was not a mere resubmission by the plaintiff, and was treated as a new application by the commission.
IV
The plaintiff additionally claims that, in denying the application for the special exception, the defendant engaged in spot zoning. The commission argues that spot zoning has no application in an appeal involving the denial of a special exception application.
"[S]pot zoning is 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 to constitute spot zoning. 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 . . . [T]he 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 plan." (Citations omitted; internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 592, 930 A.2d 1 (2007).
In Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 112, 248 A.2d 922 (1968), our Supreme Court held that "[t]he plaintiff's claim that the granting of the special exception constituted spot zoning is not well founded . . . A special exception does not involve a change of zone but rather a permitted use when certain conditions specified by the ordinance are met." (Citation omitted.) As in Rocchi, the present case involves not a zone change, but a special exception. The plaintiff's claim that the defendant engaged in spot zoning is without merit.
V
The analysis therefore moves to the stated reasons for denial in the commission's decision. The plaintiff alleges that the plaintiff acted illegally in its denial of the application in the following ways: 1) by denying the special exception based upon reasons not supported by the record, not pertinent or germane to the proper considerations it was required to apply, and for only vague and general reasons; 2) by rejecting the report, testimony and conclusions of the plaintiff's noise expert when there was no evidence in the record or properly received by the Commission that would establish a factual basis for undermining either the credibility of or the conclusions reached by Plaintiff's noise expert; 3) by making a finding that the term "automobile repair" does not include the repair and/or maintenance of commercial vehicles, trucks and equipment; and 4) by finding that it did not have enough time to completely review the application for compliance and by finding that the Plaintiff had restricted the Commission from obtaining pertinent information. The commission responds that it did not abuse its discretion in any of those instances, and that the decision was supported by sufficient evidence in the record.
"The local authority's action must be sustained if even one of the stated reasons is sufficient to support it." Daughters of St. Paul v. Zoning Board of Appeals, 17 Conn.App. 53, 56, 549 A.2d 1076 (1988). Because the court finds that the record supports the commission's conclusion that the proposed use is incompatible with § 52 of the Canton zoning regulations, outside of the construction of the term "automobile repair" or any time constraints mentioned by the commission, those arguments need not be discussed.
"Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). "[A] party challenging the action of a planning and zoning commission bears the burden of proving that the commission acted arbitrarily or illegally." Blaker v. Planning Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989).
Section 8-7d provides in relevant part: "Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision . . ." "In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998). "In appeals from administrative zoning decisions the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." Raczkowski v. Zoning Commission, supra, 53 Conn.App. 639. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [This requires] something less than the weight of the evidence . . . The reviewing court must take into account [that there may be] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." Unistar Properties, LLC v. Conservation Inland Wetlands Commission, 293 Conn. 93, 113-14, 977 A.2d 128 (2009).
"The terms `special exception' and `special permit' are synonymous and have been used interchangeably." Irwin v. Planning Zoning Commission, supra, 244 Conn. 623 n. 4. "A special permit allows the property owner to use his property in a manner expressly permitted by the local zoning regulations." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, supra, 53 Conn.App. 639. "The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site." Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 519, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994).
"When ruling upon an application for a special permit, a planning and zoning [commission] acts in an administrative capacity." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 627-28. "Acting in this administrative capacity, the [zoning commission's] function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, supra, 53 Conn.App. 636. "It is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied." (Internal quotation marks omitted.) CRRA v. Planning Zoning Commission, 46 Conn.App. 563, 569, 699 A.2d 314, cert. denied, 243 Conn. 936, 702 A.2d 640 (1997).
The commission is not without discretion, however. "Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing." Irwin v. Planning Zoning Commission, supra, 244 Conn. 627. "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 . . . Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it." Id., 628. "[G]eneral considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, [the Supreme Court has] stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." Id., 627-28.
In its decision, the commission found that the plaintiff's proposed automobile repair and repair of heavy equipment was inconsistent with § 52 of the Canton zoning regulations, which provides in relevant part:
"52.6.1 The location and size of use, nature and intensity of the operations involved in or conducted in connection with it, and its relation to streets giving access to it, shall be such that it will not be hazardous, inconvenient or detrimental to the character of the neighborhood or impair the value thereof, and the use shall not be inconsistent with the Master Plan or policy for the future development of the area.
"52.6.2 The location, nature and height of buildings, walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of the adjacent land and buildings, or impair the value thereof.
"52.6.4 In acting upon an application for a Special Exception the Commission shall be guided and base its decision upon the compatibility of the proposed use with other uses in the area; the existing and future character of the neighborhood in which the use is to be located; the location of main and accessory buildings in relation to one another; the height and bulk of buildings in relation to one another; the height and bulk of buildings in relation to other uses in the vicinity; traffic circulation within the site, amount, location, and access to parking, and traffic load or possible circulation problems on existing streets; availability of water to the site and adequate disposal of sewerage and storm water; location and type of display signs and lighting, loading zones and landscaping; safeguards to protect adjacent properties and the neighborhood in general from detriment; impact on existing environmental conditions."
The commission noted that, "although . . . the proposed use of automobile repair and automobile serving station is generally compatible with an industrial zone and confirms that this has been an established industrial area with industrial uses for quite some time, the existing industrial area is adjacent to many single-family residential homes and part of an established single-family residential neighborhood . . . [T]he addition of this specific use to this site will negatively or unreasonably impact the existing neighborhood and nearby residential areas . . ."
In support of this conclusion, the commission had before it over 139 exhibits, including numerous photographs of the subject property and adjoining residential area, displaying the contrast in uses between the proposed site and the neighboring residential zone.
The commission received a great deal of correspondence from property owners expressing opposition to the application. Some materials provided raised concerns regarding water pollution, air quality and land value.
The commission also considered extensive testimony over the course of two nights of public hearings, including concerns about pollution, property values, and noise.
The problem of noise was of particular significance in the commission's final decision. The commission concluded that "the noise from repair activities inside and outside of the proposed building, use of equipment such as impact wrenches, lack of adequate sound proofing and buffering, moving of heavy equipment into and out of the building along the western residential boundary, and the specific type and quality of noise generated from the proposed use, will be too intense on the site, allowing for detrimental levels of noise and other disturbances to be transmitted off the site. Such conditions would have a negative impact on the neighborhood."
The commission had substantial evidence available to it in reaching this conclusion, including the report and testimony of the plaintiff's sound expert and a peer review of that study by the commission's outside consultant, in addition to the testimony of neighboring property owners during the public hearing. Though the plaintiff cites no actual law on the issue, it argues that the commission acted illegally in rejecting the report and testimony of its witness, and by obtaining a peer review by an outside consultant after the public hearing had closed.
"It is beyond dispute that a municipal administrative agency, composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise . . . This entitlement is necessarily implied in the legislation creating the [agency] and setting forth its duties." Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). However, "the technical and professional assistance to which a municipal administrative agency is entitled does not include the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal." (Internal quotation marks omitted.) Id., 570.
The outside consultant here, AKRF, was not a party to the controversy, however, and was instead an outside entity hired by the commission to perform an objective review of the plaintiff's noise report. "The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Id., 573-74.
In Norooz, the Appellate Court considered nonrecord letters from an outside consultant. The court held that "both letters [were] limited to a review of, a comment on and an opinion concerning evidence of record . . . here is no indication or suggestion in either letter that facts not already of record in the lengthy administrative proceeding were considered by [the consultant] in forming its conclusions and recommendations to the agency. The agency properly relied on these documents, and the trial court should not have sustained the plaintiffs' appeal."
Here, as in Norooz, the report by the consultant focuses entirely on evidence in the record, namely, the plaintiff's noise report. In fact, the report explicitly states that the only way to confirm certain claims made in the plaintiff's report would be to perform an independent analysis, which was outside the scope of its review. While the plaintiff claims that the report contains "new information," it fails to point out any nonrecord information in the report. As a result, the AKRF report is strictly a review of the plaintiff's report, which is unquestionably part of the record. In viewing the report, the court finds that it is entirely limited to a review of, a comment on, and an opinion concerning evidence of record. Accordingly, the AKRF report was properly before the commission.
Also the applicant was aware that the commission was consulting with its own expert to conduct an analysis of the noise issues via a peer review of the report submitted by the plaintiff's expert.
Likewise, the commission acted properly in weighing its consultant's report against that of the plaintiff's consultant. A commission "[is] not required to give credence to any witness, including an expert . . . Although [a] commission would [be] entitled to deny an application because it did not believe the expert testimony, however, the commission [has] the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." (Citation omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-67, 653 A.2d 798 (1995). Here, the peer review concluded that the plaintiff's noise evaluation was incomplete because it did not measure existing noise levels at the residences adjacent to the proposed repair garage, did not assess the impact of potential noise level increases at those residences, and failed to determine whether the noise generated by the proposed project would be audible or intrusive.
Thus, the findings that the noise concerns had not been properly addressed by the plaintiff, along with the finding that the intensity of the proposed use was incompatible with the directly adjoining residential neighborhoods, are supported by substantial evidence in the record.
CONCLUSION
The court concludes that the record contains sufficient evidence to deny the plaintiff's appeal from the commission's denial of its application for a special exception. Accordingly, the court holds that the decision to deny the plaintiff's application is affirmed.
For the foregoing reasons the appeal is dismissed.